Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi

215 Pages·2019·1.396 MB·English

by  Mark Hickford and Carwyn Jones

Indigenous Peoples and the State
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 type 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. With contributions from historical,
legal, political, and indigenous perspectives, that speak to one another across
and between traditional disciplinary boundaries, this is a book that promises to
generate new conversations about the complexity of Indigenous-State relations.
Mark Hickford , Pro Vice-Chancellor and Dean of Law, Victoria University of
Wellington.
Carwyn Jones, Senior Lecturer, Faculty of Law, Victoria University of Wellington.
Indigenous Peoples and the Law
Series editors:
Dr Mark A. Harris
University of British Columbia, Canada
Professor Denise Ferreira da Silva
University of British Columbia, Canada
Dr Claire Charters
University of Auckland, New Zealand
Dr Glen Coulthard
University of British Columbia, Canada
For information about the series and details of previous and forthcoming titles,
see https://routledge.com/law/series/INDPPL
The book editors thank the Law Foundation for their assistance
in the writing of this book.
A GlassHouse book
Indigenous Peoples
and the State
International Perspectives
on the Treaty of Waitangi
Edited by Mark Hickford
and Carwyn Jones
First published 2019
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
a GlassHouse book
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 selection and editorial matter, Mark Hickford and Carwyn
Jones; individual chapters, the contributors
The right of Mark Hickford and Carwyn Jones to be identified as the
authors of the editorial material, and of the authors for their individual
chapters, has been asserted in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
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Trademark notice : Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Hickford, Mark, author. | Jones, Carwyn, 1976– author.
Title: Indigenous peoples and the state : international perspectives on
the Treaty of Waitangi / Mark Hickford and Carwyn Jones.
Description: Abingdon, Oxon [UK] ; New York, NY : Routledge,
2018. | Series: Indigenous peoples and the law | Includes
bibliographical references and index.
Identifiers: LCCN 2018010914 | ISBN 9780815375258 (hardback)
Subjects: LCSH: Treaty of Waitangi (1840 February 6) | Maori (New
Zealand people)—Legal status, laws, etc. | Maori (New Zealand
people)—Government relations. | Maori (New Zealand people)—
Politics and government.
Classification: LCC KUQ353.3 1840 .H53 2018 | DDC 342.9308/
72—dc23
LC record available at https://lccn.loc.gov/2018010914
ISBN: 978-0-8153-7525-8 (hbk)
ISBN: 978-1-351-24037-6 (ebk)
Typeset in Galliard
by Apex CoVantage, LLC
Contents
List of contributors vii
Introduction 1
CARWYN JONES AND MARK HICKFORD
PART I
Foundations of Indigenous–State relationships 11
1 M¯aori and State visions of law and peace 13
CARWYN JONES
2 Origin stories and the law: Treaty metaphysics in Canada
and New Zealand 30
JOHN BORROWS
3 Originalism and the constitutional canon of Aotearoa
New Zealand 57
DAVID V WILLIAMS
PART II
Giving meaning to the Treaty through time 75
4 The Treaty of Waitangi in historical context 77
SALIHA BELMESSOUS
5 Towards a post-foundational history of the Treaty 94
BAIN ATTWOOD
6 The failing modern jurisprudence of the Treaty of Waitangi 111
JACINTA RURU
vi Contents
PART III
Diverse sites of the Treaty relationship 127
7 ‘Ko te mana tuatoru, ko te mana motuhake’ 129
RAWINIA HIGGINS
8 Reflecting on the Treaty of Waitangi and its constitutional
dimensions: a case for a research agenda 140
MARK HICKFORD
9 Future contexts for Treaty interpretation 166
NATALIE COATES
10 ‘He rangi t¯a Matawh¯aiti, he rangi t¯a Matawh¯anui’: looking
towards 2040 186
MĀMARI STEPHENS
Appendix 196
Glossary 199
Index 201
Contributors
Bain Attwood is a professor of History at Monash University. He is the author of
several monographs, including The Making of the Aborigines (Allen & Unwin,
1989), R ights for Aborigines (Allen & Unwin, 2003), Telling the Truth about
Aboriginal History (Allen & Unwin, 2005), and P ossession: Batman’s Treaty
and the Matter of History (Melbourne University Press, 2009), and numerous
articles in journals such as the History Workshop Journal , the Journal of Impe-
rial and Commonwealth History , and the Journal of Legal History .
Saliha Belmessous is an associate professor of History at the University of New
South Wales. She specialises in European colonial ideologies and the impe-
rial experiences of Indigenous peoples. She is the author of A ssimilation and
Empire (2013), and the editor of Native Claims (2012) and Empire by Treaty
(2015), all published by Oxford University Press.
John Borrows BA, MA, JD, LLM (Toronto), PhD (Osgoode Hall Law School),
LLD (Hons, Dalhousie & Law Society of Upper Canada), FRSC, is the
Canada Research Chair in Indigenous Law at the University of Victoria Law
School in British Columbia. His publications include R ecovering Canada: The
Resurgence of Indigenous Law (Donald Smiley Award for the best book in
Canadian Political Science, 2002), Canada’s Indigenous Constitution (Cana-
dian Law and Society Best Book Award, 2011), Drawing Out Law: A Spirit’s
Guide (2010), Freedom and Indigenous Constitutionalism (Donald Smiley
Award for the best book in Canadian Political Science, 2016), and The Right
Relationship (with Michael Coyle, ed.), all from the University of Toronto
Press. John is Anishinaabe/Ojibway and a member of the Chippewa of the
Nawash First Nation in Ontario, Canada.
Natalie Coates LLM (Harvard), BA (hons), LLB (hons) (University of Otago)
is a lecturer at the University of Auckland. Natalie is also a consultant at Kahui
Legal, a specialist law firm dealing with issues relating to Māori.
Mark Hickford is Pro Vice-Chancellor and Dean of Law at Victoria University
of Wellington. Prior to assuming that role in May 2015, he was advisor to
the Prime Minister in the Policy Advisory Group of the Department of the
Prime Minister and Cabinet, based in the executive wing. Trained as both a
viii Contributors
lawyer and historian, he has specialised in Indigenous–State relations, natural
resources law, and public law in legal and public policy practice, as well as in
his scholarship.
Rawinia Higgins (Tūhoe), is the Deputy Vice-Chancellor (Māori) at Victoria
University of Wellington. Previous to this, she was the Professor and Head of
School of Te Kawa a Māui, School of Māori Studies. She is a member of the
Waitangi Tribunal and has served on a number of Boards, including Te Kotahi
a Tūhoe and Tūhoe Fisheries Charitable Trust Board.
Carwyn Jones (Ngāti Kahungunu) is a senior lecturer in the Faculty of Law at Vic-
toria University of Wellington. He is the author of N ew Treaty, New Tradition –
Reconciling New Zealand and Māori Law (University of British Columbia Press,
2016) and is the co-editor of the M āori Law Review .
Jacinta Ruru (Raukawa, Ngāti Ranginui) is Professor of Law at the University of
Otago, Co-Director of Ngā Pae o te Māramatanga New Zealand’s Centre of
Māori Research Excellence, and a fellow of the Royal Society Te Apārangi. She
has published extensively including as co-author of Discovering Indigenous
Lands (Oxford University Press, 2010).
Māmari Stephens (Te Rarawa, Ngāti Pākehā) is a senior lecturer at the Faculty
of Law at Victoria University of Wellington. She founded the Legal Māori
Project ( www.legalmaori.net) , and her primary research interests are law and
language, Māori and the New Zealand legal system, New Zealand legal his-
tory and jurisprudence, as well as welfare law. Māmari is married to Maynard
Gilgen, has three children, and is an associate minister in the Anglican church.
David V Williams is a Professor of Law at the University of Auckland. He has
been engaged with Treaty of Waitangi issues since 1974 as a political activist
in the Citizens’ Association for Racial Equality (CARE), as an academic, an
independent researcher commissioned by numbers of Māori claimant groups,
counsel in one Waitangi Tribunal hearing, and a public intellectual offering
comments to news media.
Introduction
Carwyn Jones and Mark Hickford
Indigenous–State treaties and the rights
of Indigenous peoples
Across the globe, there are examples of treaties, compacts, or other negotiated
agreements that mediate relationships between Indigenous peoples and States or
settler communities. The Treaty of Waitangi is one living, and historically rich,
illustration of these types of negotiated agreements and both the symmetries and
asymmetries of Indigenous–State relations across time.
There is a Māori proverb “K imihia te kahurangi; ki te piko tōu mātenga, ki te
maunga teitei ,” which translates as “Seek above all that which is of highest value;
if you bow your head, let it be to the highest mountain.” The proverb exhorts
one to aim for the worthiest of goals and not to be deterred by anything of lesser
importance. These high aspirations are to be borne in mind as we continue to
give meaning to the compacts between Indigenous peoples and States. The essays
in this collection explore the diversity of meanings that have been ascribed to one
such Indigenous–State compact, the Treaty of Waitangi, by different interpre-
tive communities. The objective of the collection is to enable and illuminate a
more dynamic conversation about the meanings and applications of these sorts
of compacts, with the Treaty of Waitangi representing a striking example of how
such compacts became critical to processes of reconciliation and transitional jus-
tice today. The collection is interdisciplinary, with contributions from historical,
legal, political, and Indigenous perspectives that speak to one another across and
between traditional disciplinary boundaries. Contributors include both estab-
lished and emerging scholars, and together, they generate new conversations
about Indigenous–State relations.
I. Te Tiriti o Waitangi – the Treaty of Waitangi
The Treaty of Waitangi was signed in 1840 by Māori leaders representing their
nations/communities and representatives of the British Crown. It was initially
signed at Waitangi, and subsequently, copies were signed by Māori leaders in
other parts of the country. Not all Māori nations signed the Treaty, and not all
were offered the opportunity to do so. The Treaty has three brief written articles