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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
Seeing Human Rights Through Maˉ ori Eyes
Ani Mikaere*
The purpose of this symposium has been stated as being to explore the human
rights dimensions of the Treaty of Waitangi. I should
begin by confessing that
talking about human rights in the same breath as the Treaty never fails to make
me uncomfortable. My reasons
for feeling this way are largely captured by Konai
Thaman when she points out that:1
[M]ost international covenants are based on Western, liberal beliefs and
values, and like all beliefs and values they are embedded
in a particular
cultural agenda, where indigenous peoples and their assumptions and values have
been disregarded and marginalised.
As an indigenous person, therefore, it should not be surprising that the
mention of human rights immediately puts me on my guard.
The widely held
assumption that the concept of human rights is ‘self-evident, universal,
culture- free and gender neutral’2 merely increases my
suspicion. Simply asserting the universality of a concept does not make it
so.
I realise that not all proponents of human rights subscribe to such
universalism, some arguing instead that ‘allowances must
be made for
different cultural norms and that a standard approach cannot be taken to
rights’.3 However, even this cultural relativism smacks of
arrogance: in the context of Aotearoa, for instance, it might suggest that the
concept
of human rights ought to ‘make allowance’ for tikanga
Māori. In other words, the Western concept of human rights
is regarded as
the norm, while tikanga becomes the ‘other’, something for which
allowances might reasonably be made.
Such an approach is the very antithesis of what was encapsulated in te Tiriti
o Waitangi. But before considering that document further,
the point should first
be made that, from a Māori perspective at least, it is not the logical
starting
* Ngāti Raukawa, Director of Māori Laws and Philosophy at Te W‚nanga o Raukawa.
Since the symposium, Ani has published a more formal articulation of the ideas raised in this presentation: ‘The Treaty of Waitangi and Recognition of Tikanga Māori’ in Michael Belgrave, Merata Kawharu, and David Williams (eds) Waitangi Revisited - Perspectives on the Treaty of Waitangi (2005) 330.
1 Konai Thaman ‘A Pacific Island Perspective of Collective Human Rights’ in Nin Tomas
(ed) Collective Human Rights of Pacific Peoples (1998) 1, at 2-3.
2 Ibid, 2.
3 Human Rights Commission Mana ki te Tiriti o Waitangi: Human Rights and The Treaty of
Waitangi (draft discussion document, June 2003)
6.
54 Yearbook of New Zealand Jurisprudence
Vol 10
point for this discussion. It may well be the source of any rights that the
Crown and therefore Pākehā have in this land,
which doubtless explains
their tendency to look back no further than 1840. For Māori, however, te
Tiriti is not the source of
our rights but rather a reaffirmation of rights that
stem from the fact that we are tangata whenua, the people of the land.
Our connection with Aotearoa stretches back through the last millennium,
throughout which time tikanga Māori operated as the
first law of the land.
Tikanga Māori is based upon a set of underlying principles that have
withstood the test of time: principles
such as whakapapa, whanaungatanga, mana,
manaakitanga, aroha, wairua and utu. While the practice of tikanga was adapted
over time
to meet new contexts and needs, it nevertheless remained true to those
foundational concepts, which some have called ‘conceptual
regulators’,4 others ‘kaupapa’.5 Durie
has pointed out that allowing for the adaptation of practice while protecting
the fundamental norms underpinning it ‘enabled
change while maintaining
cultural integrity’.6
Moana Jackson has observed that the efficacy of this system was ensured
through the exercise of rangatiratanga, which was ‘a total political authority’.7
Importantly, both the Declaration of Independence and te Tiriti o Waitangi
reaffirmed that authority.
The Declaration, signed initially by thirty four northern rangatira at Waitangi on
28 October 1835 and eventually signed by a further eighteen over the ensuing
four years, contained a declaration by the signatories
of their rangatiratanga
(translated as their independence) under the designation of the United Tribes of
New Zealand. It declared
that kingitanga and mana (all sovereign power and
authority) resided in them collectively, and that they would meet annually at
Waitangi
in Congress to pass laws. They declared that they would not permit any
legislative authority (whakarite ture) to exist apart from
themselves, nor would
they permit any function of government (kāwanatanga) to be exercised by
anyone other than persons to whom
they delegated such a
task.
4 T Durie, ‘Custom Law’ (unpublished, 1994) 4-5.
Charles Royal citing Māori Marsden, in ‘Kaupapa and Tikanga: Some Thoughts’, paper delivered at Mai i Te Ata Hāpara conference, 11-13 August 2000, Te Wānanga-O-Raukawa, Ōtaki, 1.
6 Durie, above n 4, 8.
7 Moana Jackson ‘The Treaty and the Word’ in G Oddie & R Perret, (eds) Justice, Ethics and
New Zealand Society (1992) 1, at 5.
2007 Seeing Human Rights Through Mäori Eyes
55
Te Tiriti o Waitangi8 developed this idea further by reaffirming the tino rangatiratanga of the Māori signatories and by delegating kāwanatanga to the Crown. As with the Declaration of Independence, Busby was involved in drafting the Treaty in English, and Henry Williams was a key figure in its translation into Māori.9 Over half of the rangatira who signed te Tiriti at Waitangi had signed the Declaration there less than five years earlier.10
These signatories would have had particularly good reason to expect that the
words used in Te Tiriti would have the same meaning as
they had had in the
Declaration, in other words, that their ultimate authority (tino rangatiratanga)
within Aotearoa was being affirmed
but that they were delegating to the Crown a
lesser form of authority (kāwanatanga), to regulate the conduct of British
nationals.
Moreover, in reaching such a conclusion as to the meaning of the document that they were signing, the signatories would have been profoundly influenced by the realities of the time. Throughout seventy years of contact with the British, Māori authority in Aotearoa had never been questioned. In fact, the Crown had gone to considerable lengths to acknowledge that authority. In 1840
Māori outnumbered the permanent settler population by forty to one,
Māori numbering between 70,000 and 90,000, Pākehā
just
2,000.11 The conduct of many of the British transient population was
a matter of grave concern, so it made sense to delegate the necessary
authority
to the Crown to enable it to deal effectively with its own citizens.
Both the clear words used in Te Tiriti o Waitangi and the context in which it
was signed, therefore, reveal a clear Māori intention
to create space for
the Crown to regulate the conduct of its own subjects, subject to the overriding
authority of the rangatira.
This reaffirmation of Māori authority meant
that the highly developed and successful system of tikanga that had prevailed
within
iwi and hapū here in Aotearoa for a thousand years would retain its
status as first law in Aotearoa: the development of Pākehā
law, as
contemplated by the granting of kāwanatanga to the Crown, was to remain
firmly subject to tikanga Māori.
8 I am referring here to the document in Māori: this was the version signed by all but thirty nine of the five hundred and forty Māori signatories.
9 Ranginui Walker Ka Whawhai Tonu Matou: Struggle Without End (1990) 90; Claudia
Orange The Treaty of Waitangi (1987) 36-39.
10 Orange, ibid, records Hobson’s calculation that twenty six of the forty six Waitangi signatories were Confederation chiefs, at p 55. However, it should be noted that the number of Waitangi signatories cannot be calculated with precision: Orange says the number may be forty three, forty five or fifty two, at p 2 9.
11 Ian Pool Te Iwi Maori: A Population Past, Present and Future
(1991) 58.
56 Yearbook of New Zealand Jurisprudence
Vol 10
As we all know, the Crown perception of the legal position in Aotearoa is
rather different: the Crown has assumed that the law emanating
from Parliament
is supreme law and that tikanga exists at the whim of that law: the phrase once
used was that Māori ‘custom’
(cultural arrogance prevented the
Crown from accepting that Māori had ‘law’) could only be
allowed to persist insofar
as it was not ‘repugnant’ to
Englishmen.12 This assertion of the supremacy of the
coloniser’s law has become so dominant, so all-encompassing, that it is
easy to fall
into the intellectual trap of accepting it as unchallengeable or,
at very least, as somehow inevitable.
Yet clearly this is not the case. While our experience of colonisation has
been devastating, its impact should not blind us to the
fact that it has
occupied a mere moment in time on the continuum of our history. When viewed in
this way, it is apparent that while
tikanga operated as an effective system of
law for our ancestors for thousands of years, the imposition of Crown law
represents no
more than a temporary aberration13 from that state of
affairs.
The question is, how best to correct the aberration and find our way back to
the position that was contemplated by Te Tiriti o Waitangi?
And how might the
concept of human rights fit into the legal framework of an Aotearoa where the
first law status of tikanga Māori
is unchallenged?
Perhaps it is easiest to begin by identifying some obvious traps that should
be avoided if we are to have any prospect of success
in the struggle to
reinstate tikanga to its rightful position. First of all, we must not succumb to
the oddly pervasive suggestion
that the true meaning of what Māori agreed
to in 1840 is difficult to ascertain. There has been a carefully crafted sense
of
confusion surrounding the events at Waitangi and beyond, one that stems from
an inability on the part of Pākehā academics
to confront their true
effect. In fact, as already discussed, the words of Te Tiriti are crystal clear,
and are fully supported by
the context in which it was drafted and signed. The
English language document, signed by a mere thirty nine people by accident
rather
than design, and in circumstances where it is unimaginable that the
discussion resulting in their decision to sign would have been
conducted in
anything other than te reo Māori, is largely irrelevant. While the Crown
has been fixated on the English language
document (scarcely surprising, given
that it is the only place where reference to the cession of sovereignty to the
Crown can be
found), the fact is that that document played an entirely
peripheral role in
12 See, for example, the sentiments of James Stephen, Permanent Under-Secretary at the
Colonial Office during the 1830s and 1840s in Alan Ward, A Show of Justice: racial
‘amalgamation’ in nineteenth century New Zealand (1995) 33.
13 I have borrowed this term from Whatarangi Winiata, tumuaki of Te Wānanga-O-Rauakwa,
who has used it to describe the process of colonisation in
Aotearoa.
2007 Seeing Human Rights Through Mäori Eyes
57
signatories’ decisions to sign. For the Crown and others to seek to elevate it now to serve their own purposes, when in fact it was so marginal to events in
1840, is intellectually dishonest.
In fact there is a disturbing amount of intellectual dishonesty in much of what is sometimes rather grandly referred to as Treaty jurisprudence. A classic example builds on this deliberate fabrication of confusion surrounding the meaning of the documents signed in 1840 by suggesting that the bewilderment can be resolved by resorting to the ‘principles’ of the Treaty. Whatever the parliamentary motivation for using the term in the Treaty of Waitangi Act 1975, the principles have taken on a life of their own. Reliance on the principles of the Treaty in order to describe the relationship between Māori and the Crown leads us down the murky path of ‘partnership’ whereby tino rangatiratanga is made subject to kāwanatanga through such euphemistic contrivances as
‘reasonable cooperation’, ‘good faith’ and
‘reciprocity’. Contrary to what some have suggested,
rejecting the
use of the principles is not simply about respecting the mana of the words used
in the Treaty.14 More than that, it constitutes a conscious refusal
to collaborate in the judicial rewriting of that which our ancestors agreed to.
The truth is that by the end of the 1980s the concept of the principles had been
hijacked by the Court of Appeal, and had become
a ruse to deny Te Tiriti. As
Jane Kelsey observed in 1990, ‘via the concept of the principles the
judgments had gone full circle
and returned to adopt the key elements of
sovereignty in the English text at the expense of tino rangatiratanga in the
Māori’.15
Endless ruminations on the supposed complexities of the agreement reached in
1840, and lame reliance on such flimsy devices as the
‘principles of the
Treaty’ in order to resolve non-existent interpretational
‘difficulties’ merely serve
as grand distractions from a simple, if
unpalatable truth: Te Tiriti o Waitangi clearly reaffirms the supreme authority
of the Māori
signatories and in so doing, reaffirms the status of tikanga
Māori as supreme law in Aotearoa. Once this is accepted, it becomes
apparent that all other law must be negotiated with reference to
tikanga.
In the context of human rights, this means that the question is no longer
‘how well does tikanga fit with human rights concepts?’
but rather
‘how well do human rights concepts fit with tikanga?’ Instead of
asking ourselves ‘to what extent must
we make allowances for tikanga
Māori insofar as it conflicts with
14 As is suggested by the Human Rights Commission in Mana ki te Tiriti o Waitangi: Human
Rights and The Treaty of Waitangi (draft discussion document, June 2003) 13.
15 Jane Kelsey A Question of Honour: Labour and the Treaty 1984-1989
(1990) 217.
58 Yearbook of New Zealand Jurisprudence
Vol 10
human rights principles?’ we should be asking ourselves ‘what do
human rights principles have to offer by way of useful
adaptation to or
development of tikanga Māori in a contemporary context?’
When the relationship between human rights discourse and tikanga is regarded
in this way, the discomfort that I spoke of at the beginning
of my address
disappears. It may well be that human rights principles have some things of
value to offer us. Having said that, I
would caution against leaping to
conclusions about the shortcomings of tikanga and the ability of human rights
law to resolve our
problems. It is often suggested, for instance, that tikanga
Māori concerning the status of women may conflict with human rights
principles. Such a position, however, reveals a superficial understanding of
tikanga. It is true that some of what is held up as
tikanga could be seen as
conflicting with such standards. Yet, a closer observation reveals that tikanga
Māori upheld the principle
of balance between genders, and that many
destructive changes to this principle that have occurred over time can in fact
be traced
to the influence of Christianity and the patriarchy of Western law.
All of which suggests that it is highly illogical for us to turn
unquestioningly
to Western legal concepts for the answers to problems that have been brought
into our lives by the imposition of
Western ideas. If we are too quick to deny
the validity of tikanga Māori by seeking answers in imposed law, that is a
powerful
indication that we have lost faith in our own legal philosophies, that
loss of faith itself a sign of the self-negation that Moana
Jackson has
described as being a necessary part of the process of
colonisation.16
Despite these potential pitfalls, however, once tikanga is reaffirmed as
supreme law we should not be afraid to embrace concepts from
other legal and
philosophical traditions where they have the potential to enhance our own
system. It certainly is not the case that
tikanga Māori is rigidly fixed in
the past. Like any successful system of law, it is adaptable: what cannot be
sacrificed are
the underlying principles that were mentioned earlier. So long as
an idea from human rights discourse is consistent with those underlying
principles, we may be quite prepared to adapt our tikanga in order to
incorporate it. That is the true nature of the relationship
between Western
legal concepts (including human rights) and tikanga Māori that was
anticipated by Te Tiriti o Waitangi.
16 Moana Jackson above n 7, 4-5.
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