Reframing the Debate: Te Tiriti in a Kaupapa Māori Framework

August 30, 2011

It is an often-repeated truism that Te Tiriti O Waitangi, as an instrument of international law, is not binding on New Zealand law unless it has been expressly referenced or incorporated into the domestic legislation.  This legal position has frustrated Māori who, for generations, have sought to have the rights contained in Te Tiriti upheld by the courts.  It represents one of the biggest impediments to the recognition of Māori rights.

Having made the decision to write a LLM Dissertation next year, I have been reflecting a lot lately on the issue of assessing a legal position in a Kaupapa Māori Framework rather than the dominant Westminster Framework.  The legal analysis set out in paragraph one is a distinctly Westminster analysis of the current legal position of Te Tiriti O Waitangi.  The problem with adhering to the Westminster Framework is that it will, be definition, favour the rights of the colonisers over the colonised.  Māori rights can never be fully realised within the Westminster Framework, the system itself will never allow it.  It is only within a Kaupapa Māori Framework that Māori rights can be upheld in their entirety.

That is why it is imperative for us as Māori to analyse documents like Te Tiriti o Waitangi from a Kaupapa Māori perspective.  Tikanga Māori is a living body of law which needs to be encouraged to grow and develop.  As Māori lawyers, we have a responsibility to contribute to the growth and development of Tikanga Māori and use a Kaupapa Māori Framework whenever we approach a legal issue.

Te Tiriti o Waitangi represents an agreement between Iwi Māori and Iwi Pākehā.  It is not an International Treaty, rather, it is an agreement grounded in the Mana and Tikanga of Ngā Puhi.  It recognises institutions and rights that flow through Tikanga Māori, uninterrupted from time immemorial.  The rights and obligations contained in Te Tiriti remain valid rights and obligations today – while the Westminster Framework does not recognise them, Tikanga Māori does.

It is time to reject the notion of Te Tiriti O Waitangi as an instrument of international law, defined solely by the colonisers legal system.  Instead, we should adopt a legal analysis which states that Te Tiriti is an agreement grounded in Tikanga Māori and the rights and obligations contained therein have become, in their own right, rules and principles of Tikanga Māori.  Leaving aside for a moment the issue of using the Westminster Courts to apply and uphold Tikanga Māori, by grounding Te Tiriti in Tikanga, there is room to make a strong argument for the formal, legal recognition of its rights and obligations. For the Common Law does provide a useful concession to the colonised in its recognition that the customary law of indigenous peoples remains valid law within the Westminster system unless it has been expressly abolished.


A Simple Nullity? Part 1

August 22, 2011

I am currently reading David V. Williams’ latest book, “A Simple Nullity? The Wi Parata Case in New Zealand Law and History” and it has provoked my thinking about Te Tiriti and it’s treatment by the Courts in this country.  The book is a fascinating read and I would highly recommend it to anyone with an interest in Māori history and law.   The true value of this work arises in Williams in-depth analysis of the historical and political circumstances that led up to the Court case. This discussion allows us to place the judgment of Chief Justice Prendergast in its proper historical context.

Without giving too much away, Williams’ central thesis is that modern jurists have failed to properly engage with the Wi Parata decision.  It is all to easy to hold up this case as an example of the negative settler attitudes towards Māori and, in one broad stroke, demonise an entire generation of New Zealanders to further our own aims of Tino Rangatiratanga.  So pervasive is this analysis of Wi Parata, I am constantly hearing ad nauseam, the following argument presented by law students in my tutorial groups: “Chief Justice Prendergast in Wi Parata said that Māori are barbarians and that Te Tiriti is a “simple nullity”, therefore the colonial state was racist and Māori have to fight this injustice.”  Now, there is nothing inherently wrong with such an argument, however it is a gross over-simplification of the true meaning of Wi Parata.  Before continuing, let me categorically state that this is not intended as a critique of my first year law students.  This is an argument that will be put forward by 99% of the legal profession when discussing the Wi Parata case.  The reference to the students is to demonstrate that this argument has become so indoctrinated within the legal profession that it is being taught uncritically at our law school.  Ironic given the prominent position that David V. Williams holds at the University of Auckland Law School.

If we take a step back and look at what Chief Justice Prendergast said in Wi Parata, you will find a statement that many Māori of that time, and indeed today, would agree with.  The Chief Justice did not state that Te Tiriti was a nullity, his reference was instead focussed on Te Tiriti as a cession of sovereignty.  To quote:

So far indeed as that instrument purported to cede the sovereignty – a matter with which we are not directly concerned – it must be regarded as a simple nullity.

If you read Te Tiriti you will see no reference to any cession of sovereignty.  The English translation of Te Tiriti purported to cede sovereignty, but that document should not be considered to have any legal effect in Aotearoa.  Here, the Chief Justice was stating that even The Treaty could not be regarded as a Treaty of cession.  The very position that Māori have been arguing for the past 170 years.  Yes, his reasoning was that Māori were a “barbaric” society and therefore lacked the political capacity to enter into international treaties but again, this statement should be considered in light of the meaning of the term at the time it was written.  While “barbaric” certainly held negative connotations in the 1870s, this was not the only meaning of the term at the time.  To simplify European attitudes towards indigenous societies, “Barbarian” societies was any society that did not resemble an European State.  Legal thinking of the time conceptualised a very formal state structure and if no such structure could be identified, then such a society was considered to be “Barbarian”.  To assume that the term was only applied to Māori because of the perceived warring between iwi is a failure to properly recognise the legal meaning of the term at the time.

So what does this tell us about the status of Te Tiriti?  Wi Parata stands for the principle that Te Tiriti is not a treaty of cession.  In other words, the British Crown did not acquire sovereignty by virtue of Te Tiriti.  In fact, as far as I am aware, no court in Aotearoa/New Zealand has stated that sovereignty was acquired through Te Tiriti despite the clear wording of the English translation.

If not Te Tiriti, then how did the British acquire sovereignty over New Zealand? That is, if they have at all?  In the famous Lands Case, Justice Richardson referred to the 1840 Proclamations as being the final act of the acquisition of sovereignty by the British, a notion which is prima facie absurd.  One cannot simply declare the acquisition of sovereignty.  Emeritus Professor Jock Brookfield prefers the doctrine of efficacy to justify British sovereignty, others argue that sovereignty was acquired through conquest and yet more will tell you that sovereignty was acquired through settlement.  Listen to Prime Minister John Key and it does not matter how sovereignty was acquired, what is important is that Aotearoa/New Zealand is now governed by a representative democracy and that institution is here to stay.  In presenting its evidence to the Waitangi Tribunal’s hearings in the Te Paparahi o Te Raki inquiry into the meaning and effect of He Whakaputanga (The Declaration of Independence 1835) and Te Tiriti o Waitangi, even the Crown could not present a coherent case justifying the point in time in which sovereignty was acquired by the British.   Māori continue to assert that sovereignty was never ceded.  The issue is far from settled.

Over the coming months I plan on further addressing the question of sovereignty, as it will potentially form the basis of a Masters of Laws dissertation in the next 1-2 years.  It is a fascinating question and Wi Parata provides a useful contribution to resolving the 170 year old question.

As to the legal effect of Te Tiriti, Wi Parata stated that it cannot be treated as a treaty of cession and the commonly accepted response of the Courts to Te Tiriti is that is has no legal standing unless it has been incorporated into a relevant piece of legislation.  However, in R v Symonds, a seemingly forgotten case from 1847, a New Zealand Court upheld the Treaty as a valid legal document including rights that can be enforced by the courts.   Interesting.


Tino Rangatiratanga in Action?

August 10, 2011

There has been a fair bit of comment over the past 24 hours about a previously little-know piece of legislation entitled the Māori Community Development Act 1962.  A TV3 article highlighted the planned use of sections of this Act by the police to control unruly behaviour by Māori during the Rugby World Cup.  The section of the Act causing controversy is section 32:

32 Maori may be ordered to leave hotel
(1) A Maori Warden may at any reasonable time enter any licensed
premises in any area where he is authorised to carry out his
duties and order any Maori who appears to be intoxicated or
partly intoxicated, or who is violent, quarrelsome, or disorderly,
whether intoxicated or not, to leave the premises.
(2) If the Maori refuses or fails to leave the premises when ordered
to do so as aforesaid, he commits an offence against this Act
and the Warden may request any member of the Police to expel
the Maori from the premises and that member may do so with
or without the assistance of the Warden.

The power granted to Māori Wardens in this case is fairly self-explanatory and any decision to remove a Māori rests solely with the Māori Warden and not the police.  I have seen many comments today to the effect that the Act is racist and should be abolished.  Such calls are misguided and those making them fail to understand the purpose of the Act and why these powers are included.  Māori  Wardens are intended as a buffer between Māori communities and the police.  Their existence is a prime example of Tino Rangatiratanga in action.

For the past 170 years we have continued to assert our right to Tino Rangatiratanga.  In the realm of law and order there are frequent calls for Māori solutions to be provided and the Māori Wardens are a crucial element in this.  They exist as a uniquely Māori solution to preventing unruly behaviour from escalating.  Consider the current riots sweeping through the United Kingdom. If that occurred here, and Māori youth were involved, who would have a better chance of restoring peace to the streets – the police of Māori Wardens?

Abolishing the Act is not the answer here, nor is calling the police racist in their efforts to utilise Māori Wardens in the community.  To take away the power of a Māori Warden to act to prevent unruly behaviour renders their position useless.  In fact, the greater engagement of the Māori Wardens by the police is a good thing for Māori.  After-all, we have been asking for generations for our right to manage our own affairs to be upheld.

Update: The Māori Wardens have today come out and stated that they will not be dragging Māori out of bars.  There was nothing to suggest that they would either, they are a force of peace in our community.


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