Australasian Bioethics & Health Law Conference
The Kirby Oration
2012
Mason Durie
 Whakarongo,
whakarongo,
whakarongo mai ra;
Whakarongo ki te tangi a
te manu nei;
 Tui, tui, tuituia;
 Tuia ki runga
Tuia ki raro
Tuia ki roto, tuia ki waho
Tuia ki te here tangata
 Ki te wheo ao, ki te ao
marama.
Listen to the call of
the Tui bird
 Calling us all to unite
 Unite with the skies
 Unite with the earth
 Unite people with
their ancestral lands
 Unite individuals with
their people
 In order to live In a
world of light

He Mihi
A word of greeting

E nga manuhiri kua tae mai ki
Aotearoa, koutou hoki no tenei
ao. Tena tatou katoa.

Greetings to those of you who
are visitors to this country; and
also to those who live here.

Otira, Ngati Whatua, koutou o
te kainga, anei nga mihi
whakawhetai ki a koutou i
manaakitia mai ki tenei ope e
huihui ana ki Tamaki Makaura

And special recognition of the
local tribe, Ngati Whatua, and
to those who have contributed
to this conference in Auckland.

We have been united by a
common quest to discuss the
ways in which we can value
health and ensure that people
can live their lives with dignity
and purpose.

Stay well

Anei tatou i tae mai kia ata
tirotiro nga tini take e pa ana ki
te hauora tanagta, me nga
tumanako mo apopo.

Kia ora.
Human Rights
Human Dignity

5000 indigenous and tribal groups

200 million people

4% of the global population
Maori
 Tribal society (now largely urban)

Population 565,000 (15% of total population)

Life expectancy 72 years (c.f. NZ 79.9 years)

Median age 22.7 years (c.f. NZ 36 years)

Over-represented in most categories of
illness and injury.
Distinctiveness

Ecological ties
Mana whenua

Human encounters
Mana tangata

Autonomy & self determination
Mana whakahaere
3 characteristics
The earth mother and the sky
father forced apart by their
children
Separation enabled light and
growth
• The elements
• Forests & birds
• The seas, waters,
fish
• Crops & Ferns
• Humankind
But connections
were retained
Spiral
Connections
between
species
Outward flow of energy
People, land,
flora, fauna,
water, air,
cosmos
Relationships
and context
give rise to
knowledge
Smaller entities
make sense when
viewed
in relationship to
larger entities
Centrifugal direction
Identity

People are part of a
wider ecological context

Tangata whenua
People of the land

Turangawaewae
A land-based reference
point
Mauri
Relationships between:






People and the natural environment
Tangible and intangible dimensions
Organic and inorganic material
Past and future (intergenerational continuity)
The microscopic and the macroscopic
Tangata whenua (Hosts) and manuhiri
(visitors)
Marae
• Tangata
whenua
• Social
conventions
• Whaikorero • Terms of
engagement
• Tapu
• Level of
risk
• Koha
• Reciprocity
Autonomy
The Treaty of Waitangi
1840
The State
Potatau te Wherowhero
1858
The Maori King
Tuheitia
2006
Implications

Ecological Ties
The ethics of eco-connectedness

Human Encounters
The ethics of engagement

Autonomy and self determination
The ethics of empowerment
Eco-connect




Synergies between people
and the natural environment
Balance between human
endeavours and environmental
sustainability
Longstanding connections
between species
All environmental forms have a
unique ‘mauri’
Balance

Human & environmental equilibrium
 Climate change, carbon emissions

Human adaptation to the environment
 Type II diabetes (living in consumer environments)

Species specificity
 xenotransplantation

Species survival
 Assisted reproductive technologies, organ donations
 Stem cell research
Engagement

Relationship building – assessing risk & motive
 Time
 Space

Agreement on terms

Mutual benefits

Mutual respect and mutually re-enforcement
Implications

What is the reason for engagement with Maori ?

Is the research seeking a sample of Maori views or a
sample of views on Indigeneity ?

Who to engage with ?

Where should engagement occur ?

Long term relationship or ‘one off’ ?

Ownership & management of information & data –
what arrangements have been negotiated and will
they benefit or compromise Maori participants ?
Empowerment
Informed Consent
• Knowledgeable
• space to decide
• time to reflect
Active
participation
• Involvement in
research design
Guardianship:
•
research integrity
• Indigenous
• advice on
environmental
research protocol, interests
& methods
• research data
• Researcher as
well as ‘subject’ of • dissemination of
research
results
Promoting ethics

Shifting researcher attitudes

Indigenising ethical standards and protocols
Researcher attitudes
Ethical compliance
Mutual benefits
Research method
Research impacts
Centripetal focus
Centrifugal focus
Recruitment
Active participation
Scientific merit
Translational gains
Consultation
Relationship
Standards Protocols

Declaration on the Rights of Indigenous
Peoples (2007)

WAI 262 Report of the Waitangi Tribunal
(2010)
DRIP
‘The Declaration on the Rights of
Indigenous Peoples provides a
global benchmark for indigenous
heritage, justice, and future
planning.’
Article 31
Article 31

1. Indigenous
peoples have the right to:
 maintain, control, protect and develop their cultural heritage,
traditional knowledge and traditional cultural expressions,
 as well as the manifestations of their sciences, technologies and
cultures,
 including human and genetic resources, seeds, medicines,
knowledge of the properties of fauna and flora, oral
traditions, literatures, designs, sports and traditional games
and visual and performing arts.
 They also have the right to maintain, control, protect and develop
their intellectual property over such cultural heritage, traditional
knowledge, and traditional cultural expressions.
Article 32
Article 32
‘Indigenous peoples have the right to determine and
develop priorities and strategies for the development or
use of their lands or territories or other resources.’
‘States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own
representative institutions in order to obtain their free
and informed consent prior to the approval of any project
affecting their lands and territories or other resources,
particularly in connection with the development,
utilisation or exploitation of mineral, water or other
resources.’
Wai 262

WAI 262 Matauranga Maori
 Claim to the Waitangi Tribunal
 Protection of native flora, fauna, & Maori
knowledge
Claim


1991 claim (Wai 262) to Waitangi Tribunal
Crown’s failure to recognise Māori rights & authority
 indigenous flora and fauna
 rights of Iwi in connection with the protection, control,
conservation, management, treatment, propagation,
sale, dispersal, utilisation and imposition of restrictions.

Later expanded to include
 indigenous knowledge,
 cultural works such as designs, sacred sites, genetics,
indigenous medicinal knowledge, bio-prospecting,
 commercialisation resulting from Māori knowledge,
culture or properties.
Report

the focus is on the relationship between Māori and
the resources concerned.

Shared decision-making should be possible without
diminishing the significance of tino rangatiratanga
(autonomy)

The principle of partnership is central to New
Zealand’s evolving constitution

Partnership should be discussed within a futures
framework rather than as a by-product of historic
grievance.
262 Summary
At the heart of the claim was a
concern that the Māori should have
full participation in decisions about
the natural environment, Maori
health and wellbeing, and works
arising from Māori cultural
knowledge
Kirby
Justice Michael Kirby
An Indigenous Research
Ethical Framework
Standards & Protocols for Research with Indigenous Peoples
The ethics of
eco-connectedness
Ecological ties
The ethics of
engagement
Human encounters
The ethics of
empowerment
Autonomy &
self determination
End