He Rangi Tā Matawhāiti, He Rangi Tā Matawhānui

‘He Rangi Tā Matawhāiti, He Rangi Tā Matawhānui: Looking Towards 2040’ by Associate Professor Māmari Stephens is the final essay in the 2018 collection: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi.

In this essay, my wonderful colleague, Māmari Stephens, looks forward to the bicentenary of the signing of the Treaty of Waitangi in 2040. Stephens frames this chapter with ‘an instrumental question’, in essence asking, what is the best mechanism for giving effect to the relationship and recognising the rights for which the Treaty of Waitangi provides? She draws together strands of the political, constitutional, legal, academic, and public discussions of the Treaty of Waitangi to examine the ways in which we might try to answer that question. Constitutional issues, never far from discussion of the Treaty, remain central to the path to 2040 that Stephens outlines. However, this is perhaps not the same kind of constitutionalism that we have seen in the past. The kind of constitutionalism that Stephens articulates is one that includes Māori constitutional principles at its core, that is grounded in the lived realities of individuals, institutions, and communities of Aotearoa New Zealand. And it is a constitutionalism that takes for granted the place of the Treaty of Waitangi and looks to how the Treaty’s various interpretive communities might give shape to the Treaty partnership as we approach its 200th year.

Future Contexts for Treaty Interpretation

‘Future Contexts for Treaty Interpretation’ by Natalie Coates is the penultimate essay in the 2018 collection: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi.

In this essay, Coates explores the future contexts in which the Treaty of Waitangi may be further interpreted and given meaning. In particular, she examines the settlement of historical claims that are based on breaches of the Treaty of Waitangi and suggests ways in which these settlements might affect understanding of the Treaty. Coates identifies the range of relationship instruments that are common features of Treaty settlements and notes that these instruments establish new and ongoing relationships between settling groups and government agencies. This has the potential to transform the Māori–Crown relationship and will undoubtedly have implications for how the Treaty relationship is understood. Coates also considers some of the key issues that are on the horizon for Māori communities and suggests that the traditional collectivism of Māori society will be an important dimension of how those issues are addressed within the context of a re-shaped Treaty relationship.

The final essay in this collection is ‘He Rangi Tā Matawhāiti, He Rangi Tā Matawhānui: Looking Towards 2040’ by Associate Professor Māmari Stephens. I will post about this essay soon.

Reflecting on the Treaty of Waitangi and its Constitutional Dimensions

‘Reflecting on the Treaty of Waitangi and its Constitutional Dimensions: A Case for a Research Agenda’ by Professor Mark Hickford is the eighth essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This essay is one of four in the collection which explore the diverse sites of Indigenous–State relationships and the role of instruments such as the Treaty of Waitangi in framing those relationships into the future.

Professor Hickford reflects on the ways in which interpretive communities engage with the Treaty of Waitangi as a feature of a historical-political constitution. He considers the meaning of the Treaty in the context of a range of activity that constructs constitutional relationships between Māori nations and the Crown and contends “that the Treaty of Waitangi ought to be seen as a set of texts – English and Māori – instantiating contested and contestable, negotiated and negotiating communities of practice and interpretation.” Hickford is careful to pay attention to the varied and contingent nature of meaning attributed to the Treaty. The result is an account which draws on the contested and negotiated life of the Treaty of Waitangi to create space for pluralist understandings of interaction between legal systems and sources of authority. This chapter describes an approach to ‘legal association’ that is grounded in the distinctive histories of Aotearoa New Zealand, yet also speaks to the experiences of Indigenous–State relations in other parts of the world.

Next, I’ll post a little bit about the second to last essay in this collection: ‘Future Contexts for Treaty Interpretation’ by Natalie Coates.

‘Ko te Mana Tuatoru, Ko te Mana Motuhake’

‘Ko te Mana Tuatoru, Ko te Mana Motuhake’ by Professor Rawinia Higgins is the seventh essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This is the first essay in the final part of the collection, which examines the diverse sites of Indigenous–State relationships and the role of instruments such as the Treaty of Waitangi in framing those relationships into the future.

Professor Higgins provides a perspective on the Treaty of Waitangi from her own community, the Tūhoe nation. Tūhoe has a complex relationship with both the Treaty of Waitangi and the Crown. Tūhoe never signed the Treaty of Waitangi and have always asserted their mana motuhake (self-determination/self-government). Tūhoe have nevertheless used the Treaty of Waitangi framework to achieve a negotiated redress package to settle their historical claims against the Crown and to establish a platform to further advance their mana motuhake. Higgins explores the relationship between the Treaty of Waitangi and Tūhoe expressions of their autonomy, reflecting on Tūhoe’s history of interactions with the Crown and their journey through the settlement of their historical claims. Higgins illustrates the challenges of creating governance and co-governance structures that appropriately reflect te mana motuhake of Tūhoe (Tūhoe self-determination). However, these challenges are responded to with innovation and determination to realise that autonomy, that mana motuhake, which remains fundamental to the lives and identity of the people of Tūhoe.

Next, I’ll post a little bit about the essay that was contributed by my co-editor, Mark Hickford, which is titled ‘Reflecting on the Treaty of Waitangi and its Constitutional Dimensions: A Case for a Research Agenda’.

The Failing Modern Jurisprudence of the Treaty of Waitangi

‘The Failing Modern Jurisprudence of the Treaty of Waitangi’ by Professor Jacinta Ruru is the sixth essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This essay concludes the second part of the collection, which explores meanings given to the Treaty over time.

In her essay, Professor Ruru surveys the recent history of Treaty of Waitangi jurisprudence, particularly examining the way in which Treaty interests have been addressed in cases relating to water under the Resource Management Act 1991. The issues relating to water provide a powerful case study, in part because of the fundamental importance of water to the life of all communities. As Ruru notes, Māori water rights have also been central to some of the most innovative co-management/co-governance regimes that have developed through the Treaty of Waitangi settlement process, such as the settlements in relation to the Te Arawa Lakes, the Waikato River, and Te Awa Tupua (the Whanganui River system). However, Ruru argues, judicial decisions relating to water use and management under the Resource Management Act appear to be still rooted in colonial assumptions and are failing to deliver on the potential provided by the Treaty of Waitangi.

The third part of this book turns to examine the diverse sites of Indigenous–State relationships and the role of instruments such as the Treaty of Waitangi in framing those relationships into the future. I’ll post soon about each of the essays in this part, which are written by Rawinia Higgins, Mark Hickford, Natalie Coates, and Māmari Stephens.

Towards a Post-foundational History of the Treaty

‘Towards a Post-foundational History of the Treaty’ by Professor Bain Attwood is the fifth essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This essay continues the examination of the meanings given to the Treaty of Waitangi over time and the role of history in treaty interpretation.

Attwood argues for developing ‘post-foundational’ histories of the Treaty of Waitangi. Attwood contends that a significant amount of historical work done on the Treaty could be described as ‘foundational history’ in which “historians try to discern in a particular historical event, in this case the Treaty of Waitangi, some norm or another that they believe created, or should have created, or could still create, the foundations of the nation.” However, Attwood contends that understanding of the Treaty would be assisted by undertaking a post-foundational approach, which

historicises the past in such a way that it unsettles any notion of the past being comprised of self-same essences over time and instead reveals that forms of knowledge are contingent and therefore unstable as they are constructed by historical processes and relationships, especially relationships of power.

Next, I’ll post about Professor Jacinta Ruru’s contribution to the collection, entitled ‘The Failing Modern Jurisprudence of the Treaty of Waitangi’.

The Treaty of Waitangi in Historical Context

‘The Treaty of Waitangi in Historical Context’ by Associate Professor Saliha Belmessous is the fourth essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This essay begins the second part of the collection, which considers the meaning that has been given to the Treaty of Waitangi over time. The chapters in this part grapple with providing historical contexts and perspectives to the dynamic legal relationships between Indigenous peoples and States that are often framed by instruments such as the Treaty of Waitangi.

In her essay, Belmessous contextualises the Treaty of Waitangi by locating it within a framework of European expansion and treaty-making with non-European populations. In particular, she examines the colonial practices of the British Empire in the nineteenth century, identifying that there was not a single, uniform view among the political class of the nineteenth-century Britain as to how Indigenous rights ought to be addressed. Belmessous notes that treaty-making practices were consequently very dependent on each treaty’s particular circumstances and objectives, pointing out that although treaties, conceptually, appear to be deployed as a non-violent means of imperial expansion, they often remained linked to colonial coercion, force, and war. Belmessous considers the place of the Treaty of Waitangi against this background and how that particular treaty was perceived outside of New Zealand. She concludes that contextual studies assist us to give meaning to treaties such as the Treaty of Waitangi, commenting that “[i]f we seek to examine the continuing value of colonial treaties that still have a bearing on their post-colonial societies, we need to understand their past, that is, the various contexts in which they were concluded.”

The next essay that I will post about is by Bain Attwood, titled ‘Towards a Post-foundational History of the Treaty’, and continues to explore the way history is used in treaty interpretation.