Indigenous Peoples and the State

International Perspectives on the Treaty of Waitangi

Mark Hickford, Carwyn Jones

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367026196
• eBook ISBN: 9781351240352
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Across the globe, there are numerous examples of treaties, compacts, or other negotiated agreements that mediate relationships between Indigenous peoples and states or settler communities. Perhaps the best known of these, New Zealand's Treaty of Waitangi is a living, and historically rich, illustration of this types of negotiated agreement, and both the symmetries and asymmetries of Indigenous-State relations. This collection refreshes the scholarly and public discourse relating to the Treaty of Waitangi and makes a significant contribution to the international discussion of Indigenous-State relations and reconciliation. The essays in this collection explore the diversity of meanings that have been ascribed to Indigenous-State compacts, such as the Treaty, by different interpretive communities. As such, they enable and illuminate a more dynamic conversation about their meanings and applications, as well as their critical role in processes of reconciliation and transitional justice today.

Part I
Foundations of Indigenous–State relationships

1
Māori and State visions of law and peace

Carwyn Jones

The legal interpretation of te Tiriti o Waitangi has, at least in recent years, been dominated by a Western law, and in particular, a common law approach to understanding a treaty of this nature. Māori perspectives have, of course, been taken into account, but the interpretive approach has nonetheless been framed by State institutions – the courts, the Waitangi Tribunal, Parliament, and the executive branch of government. This chapter aims to sketch out a different kind of legal interpretation of te Tiriti – one that considers te Tiriti as a Māori legal mechanism, which protects Māori rights, sourced in Māori legal traditions. The Wait-angi Tribunal’s 2014 report He Whakaputanga me te Tiriti – The Declaration and the Treaty provides a thorough analysis of Māori perspectives of te Tiriti in the North in 1840.¹ This analysis is a useful foundation for a Māori law analysis, but the Tribunal necessarily remains focused on defining Treaty principles in accordance with its statute and the existing constitutional traditions of the New Zealand state.

The assertion of Crown sovereignty over New Zealand did not arrive in a landscape devoid of constitutional thought and practice. A Māori constitutional tradition was already in operation, revolving around a set of key underlying values and principles. These principles, discussed in more detail later in this chapter, are the drivers of Māori constitutional and legal traditions and give rise to a diverse range of strategies in the development of Māori law and the institutions of Māori legal and constitutional systems. This is the context into which British constitutional and legal traditions arrived. It is also the context in which British officials engaged with Māori communities in the North around adopting some of the governmental apparatus of European states and making a formal statement of the collective sovereignty held by the chiefs. And it is the context in which the Treaty of Waitangi was signed and in which later contestations of sovereignty played out. Māori constitutional thought and practice is therefore an important part of the constitutional foundations of the modern New Zealand state. Although there has been significant discussion, debate, and scholarship about the validity and impact of the Treaty from the perspective of the common law and international law,² there has been very little discussion of how the Treaty fits within patterns of Māori constitutional thought and practice.

In this chapter, I first consider the importance of exploring the meaning of treaties such as the Treaty of Waitangi from the perspective of Indigenous constitutional traditions. Here, I draw particularly on Robert Williams study of treaties in the North American Encounter era, Linking Arms Together – American Indian Treaty Visions of Law and Peace, 1600–1800.³ Williams’s study identifies the role of treaties in establishing and maintaining relationships within the context of Indigenous constitutional traditions. This then provides the framework for my examination of the Treaty of Waitangi within the Māori constitutional tradition. In the second part of this chapter, I describe central principles from the Māori constitutional tradition and consider the ways in which these central principles give meaning to the Treaty of Waitangi within the context of the Māori constitutional tradition. Ultimately, understanding the Treaty of Wait-angi in the context of Māori law suggests that the Treaty ought to be seen as an instrument that connects, rather than amalgamates, State and Māori visions of law and peace.⁴

I. Understanding the Indigenous context

The title of this chapter references the subtitle of Robert Williams’s Linking Arms Together. Williams’s work is important because it examines treaties and treaty-making as features of Indigenous diplomacy within Indigenous constitutional traditions.⁵ This chapter adapts Williams’s approach to the circumstances of Aotearoa, the Treaty of Waitangi and Māori visions of law and peace. Ultimately, Williams suggests that treaties can be understood as a means of connecting diverse communities with common aspirations. This forms links between distinct constitutional traditions but does not require an amalgamation of those traditions. Treaties provide bridges between those traditions but are premised on a continuing diversity of thought and practice of law and peace.

Later in this chapter, I outline some key strands of a Māori constitutional tradition that are crucial to understanding the Treaty of Waitangi as a Māori legal instrument, promoting Māori visions of law and peace. First, it is helpful to set out the framework for this analysis. This includes a description of the concept of constitutional traditions and an explanation of how this concept is deployed in this chapter. I also set out here some of the key strands of Robert Williams’s work on Indigenous treaty-making that can contribute to shifting the conversation about the Treaty of Waitangi, its interpretation, and its application to New Zealand’s law and constitution.

In this chapter, I use the term ‘constitutional tradition’ to describe the collection of rules, principles, and practices that shape the way in which public power is exercised within a political community.⁶ Like all traditions, constitutional traditions carry core values of a community, but do not necessarily remain static and unchanging. Traditions can be understood as packages of information that transmit important messages across the community and across time, and they only survive as long as they are relevant to the community. In some instances, traditions may constrain the range of choices available to a community, but, in other cases, traditions may act as a ‘legitimating agent’ for ideas or developments which might not otherwise have any ‘social resonance’.⁷

The Māori constitutional tradition can be found in the system of ‘tikanga’. Tikanga literally describes the right or correct way of doing things. It could also be interpreted as the just way of doing things. In essence, it reflects the appropriate way of behaving in the Māori world. Tikanga applies to all aspects of Māori life, from the everyday to the very pinnacle of human endeavour.⁸ Tikanga includes the Māori legal system as well as incorporating knowledge, principles, and practices that apply to other social, political, and spiritual/religious activity. I outline some basic principles of this system of tikanga below and suggest ways in which the Treaty of Waitangi can be understood in the context of those principles. As a general proposition, the Māori constitutional tradition is shaped by the aspects of tikanga that speak to the exercise of public power and the relationships between the institutions of public power and the interaction between those institutions and members of the community.⁹

I should note that my reference to a single Māori constitutional tradition is not intended to suggest that Māori communities all operate under a uniform set of constitutional mechanisms. That is not the case. There is great diversity among Māori communities in their tikanga, including their constitutional practice. However, it is possible to identify the high-level dimensions of a constitutional tradition which guide the application of particular practices across Māori communities. This may be understood in the same way that countries such as Canada, Australia, New Zealand, and the United Kingdom each have distinct constitutional structures. Nonetheless, they can all be seen to come under the umbrella of a Westminster constitutional tradition. This guides and shapes the priorities and objectives of constitutional design and development in each of those jurisdictions, but they are applied to the particular circumstances and needs of each state.

In Linking Arms Together, Robert Williams explores the way in which treaties can be understood within Indigenous constitutional traditions.¹⁰ Not only does this suggest a different way of interpreting and giving meaning to treaties than the approach derived from the Western tradition of international law, but it draws attention to the intention to connect and sustain distinctive constitutional communities.¹¹ Viewed in this way, treaties become instruments of connection and association, not assimilation or amalgamation.

One way in which the treaties examined by Williams can be understood is by approaching them as sacred texts.¹² Williams suggests that, for the Indigenous communities in his study “peace was a matter of achieving ‘good thoughts’ between different peoples according to a scared tradition prescribed long ago.”¹³ According to this view, treaties were sustained by a pre-existing sacred narrative and acted as the means of renewing and re-inscribing “the connections of peace and goodwill that had bound the different peoples of the world together since time immemorial”.¹⁴

Understood in this way, treaties are not merely negotiated political settlements, but instead reflect higher purposes that the parties are bound to pursue. As discussed in greater detail below, the Māori constitutional tradition also constructs agreements as sacred covenants and the Treaty of Waitangi is clearly an agreement formed within the context of that constitutional tradition.

Williams also notes that the worldview of the Indigenous communities that he considers in his study inform their constitutional traditions and locate treaty agreements against a background of interconnected relationships.¹⁵ Williams points to the way in which kin relationships provide an important frame of reference for these communities, and the way in which “the very meaning of a treaty relationship was contained in the language of a tribal life spoken through kinship terms, name-titles, and the performance of sacred ceremonies and gifting rituals.”¹⁶ The use of this language of relationships allows for visions of law and peace to be shared. As Williams notes, “[i]n a world of human diversity and conflict, connection to others was a prerequisite for survival.”¹⁷

This constitutional tradition and worldview has rights and identity inherently bound up with relationships. This includes an important emphasis on kin relations, but also recognises the significance of the relationships between people and the natural world and the power of mechanisms, like treaties, that make new, enduring relationships possible.

One of the ways in which Native American nations sought to forge constructive relationshi...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of contributors
• Introduction
• PART I Foundations of Indigenous–State relationships
• PART II Giving meaning to the Treaty through time
• PART III Diverse sites of the Treaty relationship
• Appendix
• Glossary
• Index