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

236 Pages·2018·2.122 MB·English

by  Mark Hickford, 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,
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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
Introduction
CARWYN JONES AND MARK HICKFORD
PART I
Foundations of Indigenous–State relationships
1 Māori and State visions of law and peace
CARWYN JONES
2 Origin stories and the law: Treaty metaphysics in Canada and New Zealand
JOHN BORROWS
3 Originalism and the constitutional canon of Aotearoa New Zealand
DAVID V WILLIAMS
PART II
Giving meaning to the Treaty through time
4 The Treaty of Waitangi in historical context
SALIHA BELMESSOUS
5 Towards a post-foundational history of the Treaty
BAIN ATTWOOD
6 The failing modern jurisprudence of the Treaty of Waitangi
JACINTA RURU
PART III
Diverse sites of the Treaty relationship
7 ‘Ko te mana tuatoru, ko te mana motuhake’
RAWINIA HIGGINS
8 Reflecting on the Treaty of Waitangi and its constitutional dimensions: a case for a
research agenda
MARK HICKFORD
9 Future contexts for Treaty interpretation
NATALIE COATES
10 ‘He rangi tā Matawhāiti, he rangi tā Matawhānui’: looking towards 2040
MĀMARI STEPHENS
Appendix
Glossary
Index
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), Rights for
Aborigines (Allen & Unwin, 2003), Telling the Truth about Aboriginal History (Allen &
Unwin, 2005), and Possession: 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 Imperial 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 imperial experiences of Indigenous
peoples. She is the author of Assimilation 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 Recovering Canada: The Resurgence of Indigenous Law (Donald
Smiley Award for the best book in Canadian Political Science, 2002), Canada’s Indigenous
Constitution (Canadian 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 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 Victoria
University of Wellington. He is the author of New Treaty, New Tradition – Reconciling
New Zealand and Māori Law (University of British Columbia Press, 2016) and is the co-
editor of the Māori 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 history 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.