LLM Update: Research Proposal

Regular readers will know that I am completing a LLM Research Thesis this year during my spare time.  I have finalised my research proposal and I post it here for those interested in learning a little more about my research.

Working Title

One Land, Two Laws: A Legal Framework for Sovereignty based on Communities not Territory.

Thesis

The aim of this thesis is to undertake an analysis of the nature of legal sovereignty and assess the extent to which models of what I call “community sovereignty” can co-exist within a Nation-State. The idea of community sovereignty is a powerful one for Indigenous communities and for Iwi and Hapū within Aotearoa/New Zealand who seek to have the rights guaranteed in Te Tiriti o Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples.

Sovereignty is a concept that is difficult to define. The 6th Edition of Black’s Law Dictionary provides, as a starting point, a classical, Western definition of sovereignty:

The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.

The power to do everything in a state without accountability, –to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.

Sovereignty in government is that public authority which directs or orders what is to be done by each member associated in relation to the end of the association. It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. The necessary existence of the state and that right and power which necessarily follow is “sovereignty.” By sovereignty” in its largest sense is meant supreme, absolute, uncontrollable power, the absolute right to govern. The word which by itself comes nearest to being the definition of “sovereignty” is will or volition as applied to political affairs.

Within this definition is the implication that sovereignty exists in two forms. First, the exclusive exercise of power within a geographical territory (Internal Sovereignty), and second, the ability to exercise that power without accountability or, to phrase it in another way, to act without interference from another Nation-State (External Sovereignty). This thesis is written in an indigenous context, therefore my focus will be on internal sovereignty and not external sovereignty. In exploring models of community sovereignty, the critical form of engagement for indigenous peoples is with the Nation-State within which they reside. A community model of sovereignty, therefore, is located within the exercise of internal sovereignty.

Using the Black definition as a starting point, this thesis will explore, and provide a comparative analysis of, the existence de jure and de facto of dual internal sovereignty, both on a territorial and non-territorial (or community) basis. It is uncontroversial for a State to, as a matter of law, devolve certain powers to other bodies on a territorial basis.1 While power is devolved by the Nation-State, the Nation-State remains the sole sovereign authority. A more interesting, and useful example of the exercise of dual sovereignty is that of Bolivia where a new Constitution provides for the recognition of indigenous nations within the Nation-State. These examples demonstrate that sovereignty is not the monolithic, all-encompassing power hinted at in the definition provided by the authors of Black.

The shared exercise of power exampled above all depend on fixed boundaries. To what extent can these examples provide a legal and theoretical framework for the exercise of sovereignty by a community over members of that community? What examples exist of such community sovereignty existing in contradiction of the apparently fixed territorial sovereignty of the Nation-State paradigm? These are the questions which this thesis will address.

Undertaking an analysis from an Indigenous perspective, this thesis will seek to explore these questions and discuss the concept of a community-based sovereignty rather than a territory-based sovereignty. Article 3 of the United Nations Declaration of the Rights of Indigenous Peoples provides that “Indigenous Peoples have the right to self-determination”. Article 4 provides that “Indigenous Peoples, in exercising their rights to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” To uphold the ideal of the United Nations Declaration of the Rights of Indigenous Peoples requires a movement away from the idea of sovereignty as territory-based to sovereignty based on a community of interests.

Research Context

Every thesis should be seen in the context in which they are written, and this is no different. I am a descendant of Te Ātiawa and the discussion of a community-based sovereignty is therefore not being undertaken in the abstract. A community sovereignty model is of great practical importance to indigenous peoples, to Māori, and to my own Iwi of Te Ātiawa.

Prior to 1840, Māori exercised absolute authority and control over Aotearoa. We were sovereign in every sense of the word. The arrival of Pākehā in the 19th century began to erode such absolute authority, and the signing of Te Tiriti o Waitangi led to the displacement of Māori authority in favour of British, and subsequently Pākehā settler, control. One common theme of the meaning of Te Tiriti o Waitangi, at least from the perspective of those Māori who signed Te Tiriti is that it was represented as created a dual jurisdictional framework whereby Māori would continue to exercise their tino rangatiratanga over Māori communities, land, and tāonga. This theme will be explored in this thesis, alongside the de facto exercise of power in New Zealand during the late 1800s, to argue that New Zealand has already existed under a dual community sovereignty model. 170 years on and the Government of New Zealand actively assert their position as the sole sovereign power, in contradiction to both the Māori perspective of Te Tiriti o Waitangi and the rights guaranteed to Māori under the United Nations Declaration on the Rights of Indigenous Peoples.

This research will be conducted against the backdrop of two important constitutional discussions in New Zealand. The first is the work of the Government-appointed Constitutional Review Group, tasked with conducting a wide-ranging review of New Zealand’s current constitutional arrangements. The second is the expected release during 2012 of a Report of the Waitangi Tribunal inquiring into the nature and effect of He Wakaputanga o te Rangatiratanga o Nu Tireni (The Declaration of Independence 1935) and Te Tiriti o Waitangi 1940. The Waitangi Tribunal heard evidence of the “dual jurisdiction” theory of the negotiations surrounding the signing of Te Tiriti o Waitangi.

This thesis will, therefore, both build on the evidence presented before the Waitangi Tribunal and feed into the work of the Constitutional Review Group.

1. For example in the Federal/State systems of the USA, Canada, and Australia; and the devolution of power within the United Kingdom to the National Assemblies of Scotland, Wales, and Northern Ireland.

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