Mikaere, Ani --- "Seeing human rights through Maori eyes" [2007] NZYbkNZJur 8; (2007) 10 Yearbook of New Zealand Jurisprudence 53

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.

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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.

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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.

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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.

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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.

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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.