The Experience in New Zealand Marie Shroff, Privacy Commissioner, New Zealand 4 June 2010
Vibe Hotel, Darwin Waterfront Opening Kia ora, Tena koutou, tena koutou, tena koutou katoa. Nga mihi ki te tangata whenua Larrakia. I pay my respects to the local Larrakia nation and their elders.
I want to convey my thanks for this invitation and to the Northern Territory Information Office for organising this seminar. The theme is Privacy and Society and I’ve been asked to talk about the New Zealand experience, in particular in relation to indigenous people and privacy. I listened with interest to the previous speakers talking of their similar Australian and Canadian experiences. In New Zealand, the Treaty of Waitangi providing rights to indigenous Maori is essential background – claims stemming from breach of those rights are ongoing.
I should also make a disclaimer – I personally have no iwi1 affiliation or particular expertise; but I do have a lifetime of dealing with the interface between Maori and Pakeha systems, including my 16 years as Secretary of the Cabinet at the heart of New Zealand executive government, and living in an increasingly bi-cultural New Zealand.
I have been much assisted in the following remarks by work done by the New Zealand Law Commission in its review of privacy, including its consultation with Maori on privacy issues. I am also indebted to a very recently published book Privacy Law in New Zealand2 and particularly the chapter “Maori concepts and Privacy” by New Zealand Maori legal academic Khylee Quince.3
Personal recollection Instead of starting from a theoretical viewpoint I’m going to begin with telling you a story about my mother. (It’s OK, I’m not yet in my anecdotage, you will shortly see the relevance.)
The setting is between the world wars in New Zealand in the small North Island railhead town of Matata, at that stage containing a small number of Pakeha and a larger number of Maori living in a traditional way in their village. My grandfather left a building business in Auckland to try to further his fortune as a builder, saw miller, and entrepreneur, in Matata. A staunch Scottish atheist, my grandfather was part of small social group made up of the local doctor, teacher and priest, who met regularly on his veranda to drink whisky, debate religion and politics, and no doubt to discuss how they were bringing “enlightenment to the natives and development to the bush”. My mother was then a small child at the local Maori school with its Pakeha headmaster.
Her headmaster became aware of the existence of a local urupa and decided to lead a group of children to visit it. The expedition set out with many Maori children reluctant to take part, and then to much distress amongst the Maori children on approaching the urupa. Of course the urupa was highly tapu. The whole expedition turned to chaos; the teacher and Pakeha children were puzzled and upset; the result was dismay, confusion and hostility on both sides.
My mother’s teacher made many mistakes in that instance and acted on European assumptions. For example he assumed the urupa was - as an English graveyard - a public space and that its location was no secret. He would have thought that the children were free to visit and that no offence would be caused.
In the aftermath of this little cross cultural disaster, one can’t help wondering what the conversation was like on my grandfather’s veranda that night, over the usual tot of whisky. My mother does not retail that, but the teacher is said to have left Matata shortly after the incident.
In her discussion of Maori concepts of privacy, Khylee Quince says that Maori have a “…collective interdependent relationship between people and their territory, bound by whakapapa.”4 In other words, there is a communal right to territorial privacy, especially where information may be culturally sensitive, such as the location of urupa.
Geographic information online Now I come into the 21st century. Modern technology now allows the collection of satellite-based geographic information, which can survey land and water for economically valuable minerals and resources. Collection, storage and access to this information can still raise sensitive issues with Maori. For example, as Khylee Quince tells us, resource consent processes for mining consents under the Resource Management Act 1991 may involve applying for access to information and resources that impact upon Maori territory and “[t]his information could include the name, location and information about a wahi tapu urupa that the tribal owners do not want divulged in public.”5 The good news is that a solution has been worked out. Landcare Research New Zealand has developed a classification system and framework to store and analyse Maori values and information using their 21st century geographic information system tools. The Landcare system tackles this issue and allows for different levels of classification and sensitivity of information. It provides protocols for consultation about how information will be collected; where the information should be stored; the degree of access to the information; and to whom access may be granted. All of this will be documented, and respected by users having access.
You may be wondering what this has to do with indigenous people and privacy in the normal Pakeha sense of individual privacy. I have deliberately used this example of my mother’s experience in the first quarter of the last century and a solution developed in the first quarter of the 21st century to illustrate the flexible boundaries of the ideas about privacy that we are dealing with, but also to strike a note of optimism that the difficulties that are raised can be capable of solution.
Concepts of privacy The concept of privacy, even in a European legal and cultural setting, is notoriously difficult to pin down. In Maori cultures as we have just seen it may include territorial privacy, and collective knowledge and customs. I believe the challenge is not to take a narrow, legal, exclusive definition of privacy as a core human value; but, rather, to value the concept however it manifests itself, and to find ways to respect that.
Maori and privacy Western concepts of privacy, especially legal concepts, are centred on the individual. This is not surprising as Western intellectual ideas have for many centuries developed along the lines of the rights of the individual. It will be well known to most of you here that many indigenous peoples, including New Zealand Maori, have a different focus that is more likely to look at the good of the collective, the rights of the collective and at solutions for the collective. Pakeha Western culture might say “I think therefore I am”; Maori culture would be more likely to say “I belong, therefore I exist”.6 For those of you keen to make the intellectual connection, the Law Commission has suggested that:7 …individual privacy is connected to the collective, so … individual and collective privacy interests may be mutually reinforcing… An idea of privacy based on respect for dignity and autonomy should also be able to accommodate collective rights and interests.
I am not equipped to explain Maori cultural concepts in detail or with authority; but what I can do is give you a quick insight into a couple of key Maori cultural concepts which are very relevant to privacy; firstly, the concept of tapu. Khylee Quince says tapu “provides us with the best analogy ... to aspects of the Pakeha concept of privacy. The concept of tapu has several overlapping shades of meaning, including sacred, prohibited or unclean.”8 She explains:9
Tapu is a status that exists when a person, place or thing is placed under restriction or dedicated for a particular purpose. In a legal sense, this relates to the inviolability of the human person – to be free from physical assault and interference.
Mana A related concept is that of mana; which Khylee Quince describes as “my reputation and my self esteem – both how others think of me and how I think of myself.” 10Mana and tapu combine in many settings to produce ideas and reactions which closely parallel European responses to privacy invasions.
There are other complex cultural ideas which surround and support the concept of tapu. The urupa example is one. The two concepts of mana and tapu are central to a second example.
Health (Cervical Screening) (Kaitiaki)) Regulations In 1995, when I was Secretary of the Cabinet and Clerk of the Executive Council, I signed into law the Health (Cervical Screening) (Kaitiaki)) Regulations 1995, which “provide for the establishment of a National Kaitiaki Group to consider, and approve when appropriate, applications for approval to disclose, use or publish information on the National Cervical Screening Register that identifies women as being Maori”. 11 This legislation, enabling collection of cervical screening information – intimate health information – was controversial amongst all New Zealand women, not only Maori. The well intentioned initiative to reduce cancer rates nearly stumbled and fell because of the perception that it was a breach of privacy, and of mana and tapu.
The Kaitiaki regulations provided formally for Maori oversight and care of the sensitive information.
This is an example from the health environment which focuses on another important consideration in dealing with Maori attitudes to privacy. Many Maori have developed suspicion of a Pakeha health system that sometimes seems to take their information, use it in ways that may portray Maori as an underclass, and thus destroy trust in the health system.
The centrality of trust Trust is a key issue in the privacy world generally, and particularly for Maori. The Law Commission has noted that people generally want to know who will have their information and how it will be used and have some concern about the potential for misuse.12 But, as the Law Commission comments:13 If Maori are confident that their information will be used in a way that is empowering or mana-enhancing, they will be more willing to agree to the collection and use of that information. If they believe that information will be used in a way that is derogatory to Maori and which diminishes mana, they will be reluctant to share information.
The Commission goes on to note that historically Maori have often been reluctant to provide information to the state. “This reluctance can still be seen today in lower rates of participation by Maori in the census, and unwillingness on the part of some Maori to register on the electoral roll.”14 In a small way, the Kaitiaki Regulations for the Cervical Cancer Register have shown a possible route to culturally sensitive handling of private information, through talking and consultation. My personal belief is that this controversy over Maori women’s health information benefited the whole population. It warned the politicians and the health industry that “trust me, I know what I’m doing” is not enough. It has made them more respectful, in a lasting way, about how to handle sensitive health information in New Zealand.
Kaitiaki groups are becoming a more common joint governance mechanism in New Zealand, especially in land care.
To take a further example, again from the 21st century, many Maori organisations are making increasing use of the online environment as a way of communicating and sharing information with each other. The Law Commission tells us that while the Ngai Tahu iwi, for example, is moving towards a whanau-controlled social networking space, it is doing so “cautiously in order to ensure that privacy and intellectual property are protected.”15 Whakapapa information is particularly sensitive and is closely connected to concepts of tapu and mana. Certain whakapapa information may be private or tapu; and in other environments that information may need to be presented in certain ways which preserve the mana of the individual and the collective.
Here, at OPC, we have found that privacy law in its traditional form can be useful and there are demands for us to provide guidance to Maori organisations to ensure that the law can be used to protect cultural values. Indications are that Maori themselves feel they need to tackle the issue through education of their own people about the need to respect and protect whakapapa information.
Have a think about Facebook, Google and whakapapa information. It’s going to be all too easy for Maori youth to breach cultural protocols in the online world to broadcast eg whakapapa information in inappropriate ways. These knowledge and relationship tools on the internet are in their infancy and it is not only Western notions of privacy that are at risk as they develop and gain widespread currency.
Interface with the modern world: solution seeking Most Maori also participate fully in the rights and attitudes of the Pakeha culture of New Zealand and therefore want their individual privacy rights to be respected. This of course is their right, but it does create tensions in finding good solutions for bicultural respect for privacy. The good news is that respect for human dignity is equally part of Maori and Pakeha cultural traditions. It is on this ground that many good solutions can be found, usually through simply talking it through or, to use a New Zealand word, through korero – involving a two-way dialogue – rather than just paying lip service to consultation.
This brings me neatly to a more general reflection and conclusion. I hope my examples - from the urupa, to the health regulations, to the online Maori organisation - have shown that while the differences are real, solutions can be found.
The Law Commission has proposed that the Privacy Act does not need to be amended to make provision for information that is specific to Maori, or any other ethnic, religious or cultural group. They do however think it is:16
…worth exploring whether there are any ways in which either the provisions or the application of the Privacy Act can be made more relevant to a culturally-diverse society.
Conclusion I believe the traditional legal and internationally-based privacy standards can learn from the interaction with indigenous cultures and environments. Human dignity, trust and open communication are values that most of us can enthusiastically share. Many people are saying that a new culture is developing in the online and digital environment, led by young people. Both Pakeha and Maori versions of privacy will need to adapt to this new world. The good news is that our work with young people has shown us clearly that they do value privacy highly – their approach is to want to share information, but retain control of that information and how it is used.
I would like to end on a delicious quote I saw recently. An American, teaching at an Auckland secondary school for a few years, is recorded to have said: “A Kiwi is an Englishman that the Maori have made a decent fellow out of.”
Ka kite ano
Glossary of Māori Terms
Māori indigenous New Zealander, indigenous person of