Waitangi & Indigenous Rights

Revolution, Law & Legitimation

F. M. Brookfield

• Publisher: Auckland University Press
• Year: 2013
• eBook ISBN: 9781775582366
• Topic: Business
• Subtopic: Business General
• Index: Business

This landmark study examines issues surrounding New Zealand's Treaty of Waitangi, focusing on recent Fiji revolutions and indigenous customary rights to the seabed and foreshore. In this revised edition, the author approaches these complex and controversial matters with a careful, thorough, and principled approach while dealing with the broad constitutional issues and responding to comments made by other scholars. This study will serve as an essential tool for those working in the area and for those engaged in this contemporary debate.

PART 1

INTRODUCTION

Rightly or wrongly, new circumstances now apply and a number of conflicting private interests, honestly obtained, must be weighed in the balance, it is out of keeping with the spirit of the Treaty [of Waitangi] … that the resolution of one injustice should be seen to create another.1

In those words the Waitangi Tribunal2 has explained an aspect of its statutory task. In inquiring into and making recommendations concerning wrongs done by the Crown to Maori, the Tribunal must allow for rights that have arisen under the succession of constitutional arrangements that followed the British Crown’s formal assumption of power over the indigenous Maori of Aotearoa New Zealand in 1840. The wrongs into which the Tribunal inquires do of course relate specifically to the Treaty of Waitangi entered into in that year; but they may be classed generally with wrongs done whenever one people seizes power over the territory of another.

The new rights to be allowed for are those arising under legal systems (or, synonymously, legal orders) which, imposed by revolutionary seizers of power, become at least partly legitimated over time. This book is in large part a study of the process by which legitimation or partial legitimation takes place, including the role of courts in that process and in the constitutional challenges to the legal order of which they are part when issues of the government’s legality or legitimacy arise. In the New Zealand context radical Maori protesters often challenge the jurisdiction of the New Zealand Courts and the legality of the government; and, in much more extreme situations in other countries, courts have been required to decide whether a government and constitution established by revolution (the ultimate and most drastic form of political protest) have become lawful.

The concept of revolution as a means of basic constitutional change, both in the overt overthrow of a government and constitution and also as a technique for giving effect to and securing a settlement of constitutional differences (the ‘quiet revolution’), is used throughout the book.

Part I provides legal (including jurisprudential) and historical background and a consideration of the legitimacy of legal systems or orders established by revolution, especially in the case of the revolutionary conquests of Western expansion and colonization.

In Part II the focus is on revolutions and attempted revolutions in New Zealand constitutional history. The Crown’s assertion of power over New Zealand is treated as revolutionary in that it took from the chiefs who signed the Treaty of Waitangi more than they ceded and took from the non-signatories (who had ceded nothing). Chapter 5 goes on to consider the colonialist revolution, by which as the British Crown, it asserted its power, and also the counter-revolutions of Maori resistance and the (revolutionary) splitting that has resulted in the New Zealand Crown as a separate constitutional entity in an independent nation state.

Chapter 6 deals with the partial legitimation of the colonialist revolution and the present constitutional order. Chapter 6 also deals with the special case of the successive revolutions, Maori and then British, on the Chatham Islands and its significance in Maori-Pakeha controversies.

Chapter 7 discusses present-day Treaty issues and controversies as a whole. So far as the issues are constitutional, the final chapter argues for their settlement in new constitutional arrangements to be established by a quiet revolution, preferably in a New Zealand republic. The chapter also deals with overtly and unquietly revolutionary alternatives (proposed by some) and their constitutional implications.

The epilogue, added for the second edition, concentrates on some events and developments in the new century that have affected the book’s main themes of revolution, law and legitimation.

Notes

1 Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim (Wai 22; 1988), p. xxi.

2 Created by the Treaty of Waitangi Act 1975. Its jurisdiction was made retroactive to the making of the Treaty of Waitangi (6 February 1840) by the Treaty of Waitangi Amendment Act 1985.

Chapter 1: COURTS, CONSTITUTIONS AND REVOLUTIONS

Revolution: definitions

For the purposes of a constitutional theorist (though one with practical concerns as well), a revolution may be widely defined as the overthrow and replacement of any kind of legal order, or other constitutional change to it — whether or not brought about by violence (internally or externally directed) — which takes place contrary to any limitation or rule of change belonging to that legal order.

The situations we shall be considering will clarify the definition but for the moment there may be some advantage in relating it to Charles Tilly’s recent analysis of the concept of revolution and showing how the treatment of revolutions in the pages that follow, undertaken from a specifically constitutional viewpoint, will differ from his.

Tilly defines a revolution as ‘a forcible transfer of power over a state in the course of which at least two distinct blocs of contenders make incompatible claims to control the state, and some significant portion of the population subject to the state’s jurisdiction acquiesces in the claims of each bloc’.1

There are in Tilly’s analysis two components to a revolution, of which the first is the ‘revolutionary situation’, in which three proximate causes converge to create ‘multiple sovereignty’: the appearance of contenders for the exclusive control of ‘the state, or some segment of it’, the commitment by a ‘significant segment of the citizenry’ to the claims of those contenders, and incapacity or unwillingness of the rulers to suppress (by, it seems, normal operation of the law) those contenders or the commitment to their claims.2 The revolutionary situation may lead to the second component, the ‘revolutionary outcome’, in which there is durable transfer of state power from those who held it previously, before the revolutionary situation arose, to new rulers.3

The revolution as Tilly defines it, complete in its two components of revolutionary situation and revolutionary outcome, rarely occurs, because in many cases the old rulers overcome their challengers, or the struggle, in the form of a civil war, leads to a permanent division of the disputed polity, or the revolutionary outcome is so gradual or so instantaneous that actual ‘multiple sovereignty’ never appears.4 Further, revolutionary outcomes may be produced from some non-revolutionary situations, notably where a transfer of power in an existing state results from conquest by another ‘very different’ state.5

Where a revolution within Tilly’s definition does occur, it may take the form of a great revolution such as the French of 1789 and the Russian of 1917, where the struggle is massive and its outcome is the transformation of the state and of social life.6 A smaller revolution without great social effects may be within the definition, but the mere coup d’état, and what Tilly calls the ‘top-down social transformation’, may not be.7 Tilly applies his definition to the developed states of the Europe of the last five centuries that were the subject of his special study, but it may of course be applied to modern states generally.

Now compare with Tilly’s the constitutional theorist’s definition I put forward as mine. The great revolutions do of course come within my definition, for they necessarily include the overthrow by illegal means, and the replacement, of the constitutional and legal order.8 A smaller revolution, even if it appears as a mere coup d’état and does not have great social effects, comes within the definition if it includes constitutional change effected illegally but not if (as discussed below) it is a coup accommodated within the particular legal order. Social transformation and even the most radical constitutional change, however far-reaching and even though preceded by revolutionary violence or the threat of it, are not within the definition if they are achieved within the existing legal rules for constitutional change in the polity concerned. However, the definition is wider than Tilly’s, in applying generally to constitutional changes unauthorized by those rules, whether or not they are the outcome of a ‘revolutionary situation’ and even though the change is gradual. In particular (but not necessarily exhaustively) the definition applies —

(i) where the constitutional change is brought about through conquest of the polity or territory concerned (whether or not by a ‘very different’ state or polity);9

(ii) whether the legal order overthrown or otherwise changed is the d...

Table of contents

• Cover
• Half-title
• Title Page
• Dedication
• Table of Contents
• Acknowledgments
• FOREWORD
• PART 1
• PART 2
• EPILOGUE
• ABBREVIATIONS
• SELECT BIBLIOGRAPHY
• TABLE OF CASES
• TABLE OF LEGISLATION AND CONSTITUTIONAL INSTRUMENTS
• Index
• Copyright