‘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.

Originalism and the Constitutional Canon of Aotearoa New Zealand

‘Originalism and the Constitutional Canon of Aotearoa by Professor David Williams is the third essay in the 2018 collection: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi.

Williams’ essay follows on directly from the essay in the collection by John Borrows, drawing on Borrows’ perspective on constitutional discourse in Canada, particularly as it applies to Indigenous rights, to reassess the constitutional canon in Aotearoa New Zealand.

In his essay, Williams challenges the assumption that the doctrine of terra nullius never applied in New Zealand, identifying that both the foundational cases of R v Symonds (1847) and Wi Parata v Bishop of Wellington (1877) determined, as Williams notes, “the Crown held underlying or radical title to all land in New Zealand from 1840.” Williams goes on to point out that “This is very similar to the reasoning now embraced by the Canadian courts, as in Tsilhqot’in Nation, on the origins of the doctrine of aboriginal title.” Williams suggests that not only does this approach ignore Māori understandings of land and constitutional authority, but it also obscures the meaning of the English text intended by its drafters. Williams contends that greater attention to the intention of the English text of the Treaty might suggest that it is consistent with the Māori text insofar as it supports the ongoing application of Māori law.

The next set of essays in the collection, by Saliha Belmessous, Bain Attwood, and Jacinta Ruru, turn to consider the role of history in treaty interpretation and the meaning that has been given to the Treaty of Waitangi over time. I will post a little about each of these essays soon.

Origin Stories and the Law

‘Origin Stories and the Law: Treaty Metaphysics in Canada and New Zealand’ by Professor John Borrows is the second essay in the 2018 collection: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi.

This is part of the first set of essays in the collection, which examine the foundations of relationships between Indigenous peoples and States as mediated by treaties and principles of constitutional interpretation.

In his essay, Borrows problematises interpretive approaches which ignore the complexities of the different sources of authority that underpin treaties between Indigenous peoples and States. Drawing analogies between law and religion, Borrows uses the concept of ‘treaty metaphysics’ to tease out the features of treaty interpretation in Canada and Aotearoa New Zealand. Borrows describes the way in which law creates its own ‘origin stories’, which, if not properly recognised, can conceal the nature and sources of legal authority. Borrows notes, “Law’s exile of moral, philosophical, and religious insight about the nature of its own meaning-making metaphysics sustains a dangerous lack of self-reflexivity.” In the context of treaty interpretation, this lack of self-reflexivity and transparency constrains the ability to challenge the assumption of the supremacy of State law and the applicability of State law’s interpretive processes. However, Borrows suggests that the work of treaty interpretation is best undertaken with more deliberate attention to the fundamental principles that structure the interpretive process and free it from unquestioned assumptions about the priority of either State or Indigenous law.

The next essay I’ll post about is by Professor David Williams and is titled ‘Originalism and the Constitutional Canon of Aotearoa New Zealand’.

Māori and State Visions of Law and Peace

‘Māori and State Visions of Law and Peace’ is the first essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. As we’re approaching Waitangi Day, I thought people might be interested in getting a bit of a sense of how these essays explore dimensions of the Treaty of Waitangi and the Māori Crown relationship.

The first set of essays in the collection examine the foundations of relationships between Indigenous peoples and States as mediated by treaties and principles of constitutional interpretation.

The collection kicks off with my own essay, ‘Māori and State Visions of Law and Peace’, which aims to focus attention on the role of Indigenous constitutional traditions in giving meaning to treaties between Indigenous peoples and States. I contend that such treaties sit within the constitutional and legal systems of each of the treaty parties and suggest that the appropriate interpretive frame for these agreements is, therefore, to be derived from both Indigenous and State constitutional traditions. In this essay, I identify key principles that can be drawn from the Māori constitutional tradition and consider the ways in which those principles might frame the interpretation of the Treaty of Waitangi as a Māori legal instrument. Fundamentally, I argue that “the Treaty should be seen as one component of an ongoing and developing relationship between distinct constitutional traditions.” This suggests an interpretive approach to the Treaty of Waitangi that is predicated on the creation of spaces for continuing interaction between Māori and State constitutional traditions.

Next, I’ll post a little bit about the approach taken by Anishinabe legal scholar, John Borrows, in his essay ‘Origin Stories and the Law: Treaty Metaphysics in Canada and New Zealand’.