title: The Application of the "Best Interests" Principle to Maori Children's Collective Cultural Rights: A Conceptual Shift for the New Zealand Family Court?

authors: Macbeth, Steven Alexander

subjects: "collective cultural rights"

abstract: Indigenous Peoples assert their collective rights in a world where Western liberal theory and individual rights dominate. International human rights law, however, increasingly recognises Indigenous Peoples collective rights in addition to their members’ individual rights. In 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples, which represents the most comprehensive acknowledgement of Indigenous Peoples collective rights within international law. In 2009 the Committee on the Rights of the Child issued under the United Nations Convention on the Rights of the Child General Comment No. 11 “Indigenous children and their rights under the Convention”. The Comment references the United Nations Declaration on the Rights of Indigenous Peoples as providing important guidance on the rights of indigenous children. The Comment provides authoritative guidance to State Parties that the application of the “best interests” principle to indigenous children under the Convention requires the assessment of indigenous children’s collective cultural rights and their need to exercise such rights collectively with members of their group, in addition to the indigenous children’s individual rights. Only then can the best interests of indigenous children be determined. 
As a State Party, New Zealand is obliged to implement the United Nations Convention on the Rights of the Child through legislation, judicial determinations and administrative processes. The best interests principle is already the paramount consideration and touchstone for judicial decision-making under the Children, Young Persons, and Their Families Act 1989 and Care of Children Act 2004. The Family Court of New Zealand (while making some inroads in the 1980s and 90s) has yet, however, to develop a coherent and robust approach to the assessment of Maori children’s collective cultural rights when applying the best interests principle as it is obliged to do. General Comment No. 11 and the United Nations Declaration on the Rights of Indigenous Peoples assist by providing authoritative guidance. They augment New Zealand’s family legislation, common law and social policy, which already acknowledge cultural rights and the collective nature of Maori familial relationships.
This paper looks beyond children’s individual rights and the universal application of such rights. It considers the assessment of Maori children’s collective cultural rights in addition to their individual rights under the best interests principle. Further, it analyses the relevant international and domestic authority the Family Court of New Zealand must consider when applying the best interests principle to Maori children, and the practical realities the recognition of Maori children’s collective cultural rights present. A conceptual shift by the Family Court and counsel is required. This paper urges the Family Court to develop the application of the best interests principle under the Care of Children Act 2004 and the Children Young Persons and Their Families Act 1989 to include the assessment of Maori children’s collective cultural rights in addition to their individual rights. In so doing the common law will reflect New Zealand’s unique history and circumstances, and comply with the United Nations Convention on the Rights of the Child. If it fails to do so, the Family Court risks being the subject of criticism for breaching the Convention, being out of sync with international human rights law, domestic legislation and social policy, and increasingly losing relevancy.

text: The Application of the "Best Interests" Principle to Maori Children's Collective Cultural Rights: A Conceptual Shift for the New Zealand Family Court? Indigenous Peoples assert their collective rights in a world where Western liberal theory and individual rights dominate. International human rights law, however, increasingly recognises Indigenous Peoples collective rights in addition to their members’ individual rights. In 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples, which represents the most comprehensive acknowledgement of Indigenous Peoples collective rights within international law. In 2009 the Committee on the Rights of the Child issued under the United Nations Convention on the Rights of the Child General Comment No. 11 “Indigenous children and their rights under the Convention”. The Comment references the United Nations Declaration on the Rights of Indigenous Peoples as providing important guidance on the rights of indigenous children. The Comment provides authoritative guidance to State Parties that the application of the “best interests” principle to indigenous children under the Convention requires the assessment of indigenous children’s collective cultural rights and their need to exercise such rights collectively with members of their group, in addition to the indigenous children’s individual rights. Only then can the best interests of indigenous children be determined. 
As a State Party, New Zealand is obliged to implement the United Nations Convention on the Rights of the Child through legislation, judicial determinations and administrative processes. The best interests principle is already the paramount consideration and touchstone for judicial decision-making under the Children, Young Persons, and Their Families Act 1989 and Care of Children Act 2004. The Family Court of New Zealand (while making some inroads in the 1980s and 90s) has yet, however, to develop a coherent and robust approach to the assessment of Maori children’s collective cultural rights when applying the best interests principle as it is obliged to do. General Comment No. 11 and the United Nations Declaration on the Rights of Indigenous Peoples assist by providing authoritative guidance. They augment New Zealand’s family legislation, common law and social policy, which already acknowledge cultural rights and the collective nature of Maori familial relationships.
This paper looks beyond children’s individual rights and the universal application of such rights. It considers the assessment of Maori children’s collective cultural rights in addition to their individual rights under the best interests principle. Further, it analyses the relevant international and domestic authority the Family Court of New Zealand must consider when applying the best interests principle to Maori children, and the practical realities the recognition of Maori children’s collective cultural rights present. A conceptual shift by the Family Court and counsel is required. This paper urges the Family Court to develop the application of the best interests principle under the Care of Children Act 2004 and the Children Young Persons and Their Families Act 1989 to include the assessment of Maori children’s collective cultural rights in addition to their individual rights. In so doing the common law will reflect New Zealand’s unique history and circumstances, and comply with the United Nations Convention on the Rights of the Child. If it fails to do so, the Family Court risks being the subject of criticism for breaching the Convention, being out of sync with international human rights law, domestic legislation and social policy, and increasingly losing relevancy.

year: 2015

title: Ecological, genetic and cultural status of Solanum aviculare, poroporo (Solanaceae)

authors: Weavers, Graeme Morris

subjects: Solanum aviculare

abstract: Solanum aviculare, endemic to Australasia, is an opportunist pioneer secondary successional plant occupying disturbed and open lowland habitats, and was an important medicinal and cultural species to Māori known as poroporo. It is currently in 'decline', the ecological decline appearing to correspond to a decline in knowledge and cultural use of the species. To gain understanding of the reasons for the decline, enhance ecological knowledge, assist conservation and cultural restoration of Solanum aviculare this research documented the successional role and cycle of regeneration dynamics and tactics, established morphological characteristics, investigated the genetic diversity and recorded cultural and conservation information.
The successional status and role was identified. Growth data identified cohort development and inter-site differences, metadata found height and crown spread growth to be significantly correlated and likely part of an early reproduction and dispersal strategy. Germination of soil cores from differing depths confirmed a viable seed bank exists sufficient for species maintenance. Viable seed spread via animal gut passage was determined by germination and chemical tests, results showed rats passed higher rates of viable seed than birds. Seed germination trials with stratified and fresh seed confirmed temporal and depth behaviour, flowering observation documented temporal differences with the closely allied species Solanum laciniatum, indicating a relationship to stasis induction. Leaf morphology studies documented differences between the two allied species and proposed further nomenclature.
Genetic diversity was investigated through the use of PCR/ISSR techniques. Chloroplast DNA was extracted by CTAB and DNA kit protocols. CTAB extraction was unable to effectively remove RNA, although use of DNA samples with high quantities of RNA confirmed that RNA was not an inhibiting factor in PCR production. The production of consistent reliable ISSR bands proved difficult, with no technical explanation found. ISSR findings indicate that Solanum aviculare is highly monomorphic, consisting of predominant invariant monomorphic loci. Twenty primers were tested with no polymorphic loci
identified and no intra species variation documented. Indications were also that Solanum aviculare and Solanum laciniatum are inter species invariant on monomorphic loci. Monomorphic loci may possibly be the evolutionary markers of generic differentiation within Solanum.
Surveys identified Solanum aviculare as uncommon and rare, existing mainly as single plants or small groups in the majority of areas surveyed. The Threatened and Uncommon Plant listing of Solanum aviculare as an 'at risk declining' species is confirmed and a further Recommendation category proposed. Ecological decline and corresponding decline in cultural use and knowledge of Solanum aviculare was identified through specialist interviews; appearing to be related to removal from Māori of control over their land. The name poroporo being now associated mainly with non indigenous Solanum species. Māori cultural concepts in practice were highlighted as fundamentally important to reversing the decline, with an example of a successful traditional practice based (tikanga) integrative collaborative restoration program being documented.
This research forwards that optimal collaborative solutions, programs integrating scientific and tikanga knowledge and practices, provide the best opportunity of reversing the declining trend and for increasing and maintaining knowledge associated with the traditional role of poroporo.

text: Ecological, genetic and cultural status of Solanum aviculare, poroporo (Solanaceae) Solanum aviculare, endemic to Australasia, is an opportunist pioneer secondary successional plant occupying disturbed and open lowland habitats, and was an important medicinal and cultural species to Māori known as poroporo. It is currently in 'decline', the ecological decline appearing to correspond to a decline in knowledge and cultural use of the species. To gain understanding of the reasons for the decline, enhance ecological knowledge, assist conservation and cultural restoration of Solanum aviculare this research documented the successional role and cycle of regeneration dynamics and tactics, established morphological characteristics, investigated the genetic diversity and recorded cultural and conservation information.
The successional status and role was identified. Growth data identified cohort development and inter-site differences, metadata found height and crown spread growth to be significantly correlated and likely part of an early reproduction and dispersal strategy. Germination of soil cores from differing depths confirmed a viable seed bank exists sufficient for species maintenance. Viable seed spread via animal gut passage was determined by germination and chemical tests, results showed rats passed higher rates of viable seed than birds. Seed germination trials with stratified and fresh seed confirmed temporal and depth behaviour, flowering observation documented temporal differences with the closely allied species Solanum laciniatum, indicating a relationship to stasis induction. Leaf morphology studies documented differences between the two allied species and proposed further nomenclature.
Genetic diversity was investigated through the use of PCR/ISSR techniques. Chloroplast DNA was extracted by CTAB and DNA kit protocols. CTAB extraction was unable to effectively remove RNA, although use of DNA samples with high quantities of RNA confirmed that RNA was not an inhibiting factor in PCR production. The production of consistent reliable ISSR bands proved difficult, with no technical explanation found. ISSR findings indicate that Solanum aviculare is highly monomorphic, consisting of predominant invariant monomorphic loci. Twenty primers were tested with no polymorphic loci
identified and no intra species variation documented. Indications were also that Solanum aviculare and Solanum laciniatum are inter species invariant on monomorphic loci. Monomorphic loci may possibly be the evolutionary markers of generic differentiation within Solanum.
Surveys identified Solanum aviculare as uncommon and rare, existing mainly as single plants or small groups in the majority of areas surveyed. The Threatened and Uncommon Plant listing of Solanum aviculare as an 'at risk declining' species is confirmed and a further Recommendation category proposed. Ecological decline and corresponding decline in cultural use and knowledge of Solanum aviculare was identified through specialist interviews; appearing to be related to removal from Māori of control over their land. The name poroporo being now associated mainly with non indigenous Solanum species. Māori cultural concepts in practice were highlighted as fundamentally important to reversing the decline, with an example of a successful traditional practice based (tikanga) integrative collaborative restoration program being documented.
This research forwards that optimal collaborative solutions, programs integrating scientific and tikanga knowledge and practices, provide the best opportunity of reversing the declining trend and for increasing and maintaining knowledge associated with the traditional role of poroporo.

year: 2010

title: Characteristics of quality teaching for students in New Zealand schools whose first language is not English

authors: Franken, Margaret

subjects: diverse students

abstract: The current paper draws on the findings of two recent research
reports commissioned by the New Zealand Ministry of Education (Alton-Lee,
2003; Franken & McComish, 2003) in order to generate a synthesised
statement of characteristics of quality teaching for students for whom English
is not the first language (referred to from here as NESB students1) in New
Zealand schools. Alton-Lee (2003, see Ministry of Education website,
www.minedu.govt.nz) provides a synthesis of research-based evidence
addressing the nature of quality teaching in schooling for the full range of
diverse students. In this work, diversity encompasses “many characteristics
including ethnicity, socio-economic background, home language, gender,
special needs, disability, and giftedness” (Alton-Lee, 2003, p. v). Because her
synthesis addresses diversity in the student population, she focusses on what is
common to diverse students and thus does not specify particular conditions
that pertain to any one sub-group of diverse students. Franken and
McComish (2003) on the other hand, is a research report into the English
language support for NESB (Non English Speaking Background) students in
New Zealand schools. It includes a literature review of evidence-based
research into second language teaching and learning, particularly classroom
based research. It also reports on observations and analysis of practices in
New Zealand schools, and discusses how these documented practices relate to
the research findings from the literature.

text: Characteristics of quality teaching for students in New Zealand schools whose first language is not English The current paper draws on the findings of two recent research
reports commissioned by the New Zealand Ministry of Education (Alton-Lee,
2003; Franken & McComish, 2003) in order to generate a synthesised
statement of characteristics of quality teaching for students for whom English
is not the first language (referred to from here as NESB students1) in New
Zealand schools. Alton-Lee (2003, see Ministry of Education website,
www.minedu.govt.nz) provides a synthesis of research-based evidence
addressing the nature of quality teaching in schooling for the full range of
diverse students. In this work, diversity encompasses “many characteristics
including ethnicity, socio-economic background, home language, gender,
special needs, disability, and giftedness” (Alton-Lee, 2003, p. v). Because her
synthesis addresses diversity in the student population, she focusses on what is
common to diverse students and thus does not specify particular conditions
that pertain to any one sub-group of diverse students. Franken and
McComish (2003) on the other hand, is a research report into the English
language support for NESB (Non English Speaking Background) students in
New Zealand schools. It includes a literature review of evidence-based
research into second language teaching and learning, particularly classroom
based research. It also reports on observations and analysis of practices in
New Zealand schools, and discusses how these documented practices relate to
the research findings from the literature.

year: 2005