Jackson, Moana --- "The journey from a Spanish monastery to Whitianga" [2007] NZYbkNZJur 9; (2007) 10 Yearbook of New Zealand Jurisprudence 59

Last Updated: 25 April 2015

The Journey from a Spanish Monastery to Whitianga

Moana Jackson^*

Tēnā koutou. Ko te mea tuatahi i tēnei kōrero māku e tautoko i ngā mihi kua mihia, me ngā mihi ki Te Ataarangikaahu me te Kāhui Ariki. Anei tetahi mokopuna o Ngāti Kahungunu me Ngāti Porou e tū atu nei. Kei te tautoko hoki i ngā poroporoaki ki o tātou tini mate kua wehe atu, kua whetūrangitia. Nō reira koutou, haere atu, haere atu haere atu, rere atu rā. Tēnā koutou te hunga ora huri noa ngā mihi ki te whānau whānui, tēnā koutou, tēnā tātou. He mihi hoki ki a koutou ngā kaiwhakahaere o tēnei hui, ko te tumanako māku e whakawhitiwhiti kōrero i te kaupapa kei mua i a tātou. Nō reira tēnā koutou.¹

I thought when Sir Paul² said we were running ahead of time he was going to give me more time because I’m always nervous in these symposiums, partly because of the time limits that are imposed. My Ngāti Kahungunu side is quite comfortable with half an hour, but my Ngāti Porou side is just warming up! I appreciate the chance to share some thoughts with you and I will be talking about domestic and international law but perhaps not in the context that might be expected. Neither do I wish to talk about human rights as generally understood, but rather, I wish to throw out some thoughts for consideration about the right to be human. To me, that is quite different and is fundamental to the process that our people are going through in reclaiming what is rightfully ours.

In order to do that I’d like to give my kōrero a different title, because every time I come to speak at a university or some similar place I think back to my university days. As I’ve often said I went to Law School at Victoria University and I didn’t learn much. But we had to do some compulsory non-law papers in those days. One of the papers was Latin which taught me nothing at all except how to work out the meanings of obscure English words. The other

* Of Ngāti Porou and Ngāti Kahungunu descent. A graduate in law from Victoria University he works mainly on Treaty/constitutional issues and international indigenous rights. Moana has served as chair of the Indigenous Caucus of the United Nations Working Group on the Rights of Indigenous Peoples and is a member of the UN Committee on Indigenous Rights. He has also sat as a judge on the International People’s Tribunal hearing indigenous claims in Hawaii, Mexico and Canada.

1 In this introductory greeting, the speaker pays tribute to all those who have passed on, to the late Te Arikinui, Dame Te Atairangikaahu, and to all those present to engage in the discussion.

2 Sir Paul Reeves, former Governor General of New Zealand, chaired the symposium.

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compulsory paper we had to do was English and we studied a number of plays in that year. One of which was Shakespeare’s King Lear about a mad English king who stumbles around the moors cursing his father. The second was Christopher Marlowe’s play Edward II which was about another mad English king who had an affair with his page boy. And all I learnt from that is that nothing much has changed with the English royal family. But when I handed in my assignment, I had a tutor and he had written across the front

– ‘what is your title Mr Jackson?’ I thought that was rather grand so I went to see him and he said every assignment must have a title. And so I’ve given a title to my kōrero which is called ‘The journey from a Spanish Monastery to Whitianga’.

The Spanish Monastery that I wish to refer to is the Monastery of St Theresa in the city of Valladolid. A series of debates were held there in the late 15^th and early 16^th Centuries to discuss who these people were that Christopher Columbus had discovered in the America, in what was called ‘the new world’. The presence of both this new place previously unknown to the world, and the quite different people who lived there posed major philosophical, intellectual and legal problems for Europe. Not the least of which was ‘who did this new land belong to?’ No one had ever thought of the fact that it probably belonged to the people who were already there.

A number of European states then proceeded to cross the Atlantic and stake their claims in various little rituals which usually involved placing the flag of their king and queen on the beach, probably on the foreshore, and pronouncing that that land hitherto belonged to Spain, Portugal, France, or Britain or whatever. Naturally all those European states began to fight with each other about whose flag claimed the biggest piece of land. I often wonder what the views of the indigenous people were at that time, watching these strange white people waving flags around the place, and making strange speeches apparently proclaiming that what had been their whenua rangatira suddenly, by a magical piece of drama, become the property of someone else. Because the conflicts between these states caused irrevocable tensions within Europe, the Pope at the time called the great minds in Europe to the city of Valladolid Monastery to sort the issue out. Without wanting to unduly simplify what was said because it was quite a complex debate, they had three questions to answer:

(i) Were the beings who lived in this new world human?

(ii) If they were human, what was there legal status in relation to Europe?

(iii) And thirdly, what could Europe do about defining that legal status?

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There were no indigenous peoples at the debates of course. They were simply

the objects of a quite lengthy discussion.

Simplifying the answer which they came up with to the first question, ‘were these beings human?’ was ‘yes, sort of’. They were not Christian, they were clearly not white, and they clearly lived a lifestyle that was not civilised. So although they were the children of God, the operative word was children, they were not fully thinking, sentient human adults. The debates stretched far from the Americas to New Zealand. We were redefined as being ‘sort of human’.

The answer to the second question, ‘what legal status did those sort of humans have within the discourse of European law?’ was that would they have the status befitting their ‘sort of human’ status. So, the whole jurisprudence of what we now call colonial law became based on the idea that indigenous peoples as sub-humans are entitled to sub-rights. So our humanity was reduced to the state of sub-humanity in the discourses of a coloniser’s world.

The third question was, ‘what then could we do, as Europeans, in relation to these new people?’ The answer was, ‘whatever we like – they’re not fully human, so we can deny them those things which we accept as our fully human rights’. And so as Linda said, whereas we can not readily extinguish our fully human rights, we will assume an absolute authority to readily extinguish the sub-human rights of indigenous peoples. And so from that debate in that beautiful Monastery in Valladolid came what I call the base of what I would understand as a Māori position in relation to the whole discourse of human rights.

Seven years after Columbus and other explorers laid their bits of material across the Americas, a man called James Cook sailed first of all into what is now Gisborne, and then moved around the coast to Whitianga in what he renamed Mercury Bay. There, he carved a mark into a tree and in his words

‘displayed the colours of the King of England’ and took possession of this land for their Majesties. I’m quite sure the tangata whenua of Ngāti Hei had no idea what he was doing, or even worried about what he was doing. But he brought, if you like, the legacy of the Valladolid debates to this country with the assumption that simply by discovering a sub-human land, fully human peoples could assume ownership and sovereignty over it. Cook performed that little ritual in a number of other places including Queen Charlotte Sound, where again, he carved his name and the date of his ship and acted out the same little ritual. I’m quite sure that Cook would never have sailed from Whitby in Britain and crossed the English Channel and attempted to lay his flag and display the colours on the beach of Calais in France. Because if he had

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done so, his little ritual would have had no legal effect, because full humans could not do that to each other. But full humans could do what they liked to sub-humans such as us.

The approach that I take to the relationship between the Treaty and ownership of human rights is that the Treaty of Waitangi is a statement by our people, as was the Declaration of Independence, of our full humanity. Human rights discourses were developed after World War II largely as part of the decolonisation movement in Africa. They were still nevertheless, based on an assumption of full humanity versus sub-humanity in a sense that, those who do the defining of the human rights have not been indigenous peoples. Therefore, in this country, any discussion of human rights has seen our tikanga, which gives expression to the fullness of our humanity, redefined, squashed, or squeezed within our so called ‘universal notion of human rights’. And so where does this lead us in the relationship between the Treaty and human rights discourse and domestic and international law?

I’d like to mention briefly some work that has been done in the United Nations for a number of years now, which many of you will be familiar with – the Drafting on the Declaration of Rights of Indigenous Peoples. It has been one of the most difficult areas of work that I, and the other Māori, have ever been involved in. Because the Declaration, in a sense, is an attempt by the world’s indigenous peoples to overturn the legacy of the Valladolid debates, and state the fullness of our humanity and all that that implies. Fundamental to that debate, and the drafting of the Declaration, is the inclusion in Article 3 of the right to self-determination.

The right to self-determination is regarded as the core ingredient of universal human rights. It is in most of the human rights conventions, and it is in a number of statements by the United Nations. All peoples have a right to self-determination. Indigenous peoples transplanted that universal statement, that fullness of humans to fully determine for themselves their own destiny, and put it into the Declaration of Indigenous Rights. They inserted the word indigenous, so that Māori and all indigenous peoples have the right to self- determination. Since the beginning of that drafting process in the late 1980s, no government including the New Zealand government has been prepared to accept Article 3. No government including the New Zealand government, have been prepared to accept that first of all we are peoples, and that we are full peoples entitled to a right to self-determination.

It seems to me that the Māori text of the Treaty and the Declaration of Independence are all clear statements of that right to self-determination. And so at an international level, although the Valladolid debates are never mentioned, all the shocking discourse that has developed subsequent to it about

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the inferiority of the racial other are looked upon with some embarrassment. However, the underlying ideas have remained constant. Because governments have no explanation besides complicated legal jargon, to justify it, in fact, they can not justify denying indigenous peoples the right to self- determination.

That idea permeates the Treaty discourse at home, because Treaties at their most fundamental level are international agreements. The only parties to a Treaty can be nations. Individuals can not sign Treaties. To have the capacity to treat, you have to be a sovereign nation. So if the Treaty of Waitangi is indeed a Treaty, it is an inter-nation agreement which by its nature recognises our full humanity. The government of course continues to domesticate the Treaty, to reduce it to some sort of commercial contract which has gone slightly awry because of a few shonky land deals in the past. Yet Treaties can not be unilaterally domesticated. Can one imagine George Bush signing the Treaty of Australia and then domesticating it and saying that Australia is some sort of dependant little tribe of minority with which it might deal? To me, those issues raise a number of basic questions that underpin the tension between the Treaty and the discourse of human rights. We can not fully discuss the implications of human rights towards the Treaty or vice versa until we recognise what the Treaty is. It is an expression of sovereignty never ceded by iwi and hapū and never ceded because of the fullness of our humanity. We would never have wished to, nor would we assume that we had the power to give that sovereignty away.

In that context the current Crown interpretation of the Treaty, the elevation of its principles as an alternative text is not just an absolute rereading and reinterpretation of the Treaty, it is actually a further reinventing of what they presume to be our less than full humanity. And until that issue is addressed at an inter-nation level between the Crown representing the nation and its sovereign nations of hapū and iwi, then any discourse on human rights in that universalised sense will be at best, problematic. It seems difficult to pursue logically in my view, so called ‘human rights conventions’ that Māori have certain human, civil, economic, and political rights while denying our people that fair place in our own land, in terms of the Treaty.

I welcome the attempt of a Commission to begin this dialogue, but like so many dialogues in this country it seems to me we need to go back to the beginning and ask ‘where should the debate begin?’ Should it begin accepting the current human rights discourse as a given, sitting alongside the current Crown Treaty discourse as another given, when both in fact are based on ideas and philosophies that deny us the very humanity that human rights are meant to forge?

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So as I said at the beginning, the issue for me and what I hope we might pursue today is ‘what is the right to be fully human?’ In the end, that right is only defined by the humans concerned. One of our Ngāti Kahungunu tipuna, a man called Renata Tamati Hikurangi, was an active member of what became known at home as the Repudiation Movement in the 1870s. It was set up to repudiate and stop the taking of further land. He said that the only people who can determine what is tika for Ngāti Kahungunu is Ngāti Kahungunu. I have the right to be a fully human mokopuna of Ngāti Kauhungunu, as indeed I believe do mokopuna of Ngāi Tahu, Tainui, and Ngā Puhi. It is a matter for those iwi and hapū to define. It is not for the Crown. The notion then of our human rights in the sense of the right to be human are sourced in the uniqueness of our Kahungunutanga, our Raukawatanga, our Te Atiawatanga, because those things come from the papa, from the earth, which gave birth to the whakapapa that in the end makes us fully human. It seems to me that the discourse needs to begin at a different place. The issue is not how does tikanga fit within the current human rights discourse? But rather, what steps can that discourse take to recognise the different philosophical base of the right to be human? I hope that maybe I’ve pursued that kōrero today.

Huri noa e rau rangatira mā, e ngā whaea, me koe Tā Pāora, tēnā koutou, tēnā koutou, tēnā tatou katoa.³

3 This final greeting to all present makes special mention of Sir Paul Reeves (Tā Pāora),

former Governor General of New Zealand, and chair of the symposium.