Does the Prejudicial Treatment of Takatāpui and Te Ira Takatāpui Constitute a Breach of the Principle of Active Protection Under Te Tiriti o Waitangi and the Treaty of Waitangi?

Abstract

This thesis argues that the prejudicial treatment of takatāpui and te ira takatāpui constitutes a breach of the principle of active protection under Te Tiriti o Waitangi and the Treaty of Waitangi. Te ira takatāpui refers to the whakapapa of a way of life rooted in the culture of Māori who have diverse sexualities and genders. That way of life, and the cultural expression it entails, is a taonga to Māori. The Crown owes a duty of active protection toward taonga, yet its treatment of takatāpui has been consistently prejudicial. This includes the criminalisation of te ira takatāpui, the failure to act during the AIDS pandemic which resulted in the preventable deaths of many takatāpui, and the long-standing failure to afford equal rights and protections in areas such as hate crime and hate speech laws, protection from conversion therapy and the gay panic defence, and the delayed recognition of same-sex marriage and its associated legal benefits. The Crown’s prejudicial treatment of takatāpui caused immense harm to a taonga, and therefore constituted a breach of its duty of active protection. This treatment disrupted the takatāpui way of life, interrupted the continuity of te ira takatāpui, and caused direct harm to a form of cultural expression rooted in te ao Māori. That breach gives rise to a corresponding duty to provide redress. In fulfilment of this duty, the Crown could consider issuing a state apology for breaching the principle of active protection, establishing a Ministry for Rainbow People, funding public service organisations that serve takatāpui communities, and restoring te ira takatāpui through the revitalisation and dissemination of mātauranga Māori.