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Whiu, Leah --- "Human rights and the Treaty" [2007] NZYbkNZJur 10; (2007) 10 Yearbook of New Zealand Jurisprudence 65

Last Updated: 25 April 2015

Human Rights and the Treaty

Leah Whiu*

E tū ana ahau ki te tautoko i ngā mihi kua mihia, i ngā kōrero kua whārikihia ki mua i a tātou i tēnei ata. Kei te mataku ahau ēngari ko te mea tuatahi, ko tēnei taku mihi mahana ki ngā whāea, ki ngā rangatira katoa kua tae mai ki konei ki te whakarongo, ki te whakawhitiwhiti kōrero e pā ana ki te kaupapa o tēnei rā. Ki ngā tāngata whenua o tēnei rohe, tēnā koutou katoa mo tō koutou awhina, me tō koutou manaakitanga ki a mātou i tēnei wā. Ki te hunga mate kua wehe atu ki te pō, haere, haere, haere atu rā. Ki a koutou ngā kanohi ora, tēnei taku mihi mahana ki a koutou katoa mo tō koutou wehi, mo tō koutou ihi mō tēnei kaupapa. Ka huri aku mihi ki te kaiwhakahaere o tēnei hui – ki a koe Tā Pāora, tēnā koe mō tō mahi i tēnei rā.

Ko wai ahau? He uri ahau nō Ngāpuhi me Ngāti Hine, nō Te Taitokerau. Tēnā koutou, tēnā koutou, tēnā tatou katoa.1

Ani said earlier that it was very hard to follow someone like Moana. So you can all imagine how I might be feeling following people who have been my mentors ever since I began this journey. People like Moana and Ani, and also Linda who has been, our tuakana amongst Te Piringa – our group of Māori staff at this law school, for a number of years now. So I pay tribute firstly to you three for everything you have shared this morning. And I thank you for the wonderful journeys that you have taken us on so far today.

A really interesting thing about the speakers today is that we didn’t talk to each other about what we wanted to say until this morning, and it is amazing how we have managed to weave together the threads of our journeys so naturally. As Linda said in her talk, when we talk about topics such as the topic for today, we are talking about our lives. So, inevitably as Māori, we often share these threads that speak about our existence, and speak about how we have

* Leah Whiu is of Ngāpuhi and Ngāti Hine descent. Leah is a Senior Lecturer in Law at the

University of Waikato.

1 Leah endorses all acknowledgements made by previous speakers and pays special tribute to the elders present and the local tribes for their hospitality and their participation. The greeting acknowledges those who have passed on, and all those present, before turning to acknowledge the chair of the symposium, Sir Paul Reeves. Leah introduces her tribal affiliations to the far north tribes of Ngāpuhi and Ngāti Hine.

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become fully human.2 While Ani was talking, I heard the kuia behind us saying

‘how do we create the situation of following tikanga as the first law?’ That is a hugely important question for all peoples in Aotearoa at this time. As I thought about that, one of the things that came to me is the Nike emblem ‘just do it’! That was what came to me – even though I know about colonisation and the impacts that that process continues to have on Māori and upon all of us in our various countries. It sounds simplistic. It sounds trite, but there is a part of me that just wants to say it – ‘just be who you are, just be Māori, just be Ngāti Hine, just be Tainui’. Also, as Linda explained to us this morning, as King Tāwhiao has prophesied – it is within our ability, and desire to create those things that will nurture us and the generations to come.

So this leads me on to my presentation for today. My topic is human rights and the Treaty, and I was really pleased, despite being a little nervous and scared to follow behind Moana, Linda, and Ani, because in their kōrero thankfully there is a lot of resonance with what I want to focus on as well. I want to start with this quote from Paulo Freire who is a Latin American theorist/educationalist who I have always admired – once I figured out what he was saying! I have held this particular belief for a while and I wanted to use it today to begin my talk and I’ll read it out. He says:

While both humanisation and dehumanisation are real alternatives – only the first is man’s vocation. This vocation is possibly negated, yet it is affirmed by that very negation. It is thwarted by injustice, exploitation, oppression, and the violence of the oppressors; it is affirmed by the yearning of the oppressed for freedom and justice and by their struggle to recover their lost humanity.

Now I’m not interested in a debate over that word ‘lost’. I don’t think humanity is something we can actually lose. But I think this quote ties in quite nicely to some of the themes that have come from the earlier sessions. The reason why I have chosen this quote to start with is, because for me as a Māori woman living in this time in Aotearoa, inevitably I have had to grapple with, deal with, as I’m sure we have all had to, the pain, anguish, and sadness about our existence as Māori who have been and continue to be subject to colonisation in this country. I wanted to talk though not only about that sadness and that pain, but actually, more importantly, particularly in the context of the discussion about human rights, about the potential for us all to flourish. In particular I wanted to focus on the ways that we, despite that reality, still yearn for freedom and justice as Paulo talks about.

2 Of course indigenous peoples have always been fully human. However we have been constructed by our colonisers as less than human, sub-human. By using this term ‘becoming fully human’ here I am speaking to this discourse of our dehumanisation at the hand of our colonisers.

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I want to share my plans for this year because I think it is a little illustration of the ways that we try to guard against what Paulo talks about ‘losing our humanity’. I used to think that as a Māori woman that could not speak te reo Māori3 that I wasn’t Māori enough. I used to think that because I didn’t know my peoples’ language and I didn’t know a lot of our tikanga, I used to think what sort of Māori am I? And for me I guess that has been the most painful part of colonisation, that I would even question my identity in this way – despite knowing that I am a wahine of Ngāti Hine me Ngāpuhi descent. Despite understanding some of what our people endured, I would for one moment, question who I am as a Māori, as Ngāti Hine, as Ngāpuhi. This is an example of what I think Paulo Freire is talking about in terms of our ‘lost humanity’. Both the loss of my mother tongue – te reo Māori, and the internalisation of a negative self-image and/or a fragmented identity as Māori because of that loss are part of the legacy of colonisation which we as indigenous peoples’ have to contend with and somehow find a way to live with. One of the things I have done this year4 in terms of recovering what I would call my ‘lost humanity’ is taking a year off work to learn te reo, and the university supported me to do this. This year I have been at the Polytechnic doing a course in Te Ataarangi, learning te reo. For me, this is an expression of how, as a Māori woman, living in this colonised reality, I am attempting to reclaim some of what Paulo refers to as our ‘lost humanity’.

This is why I wanted to talk about Paulo’s work, because this work speaks to me about the journeys that we can take and the journeys we are taking as we struggle with the realities of dehumanisation and humanisation and on becoming more fully human. I wanted to talk about this in terms of the Treaty, and thankfully Ani gave you a bit of background to the Treaty, so we have talked a bit about the context within which the Treaty was signed. I wanted to draw your attention to this ‘wonderful’ case which many of us will be familiar with – Wi Parata v Bishop of Wellington.5 My question is how is dehumanisation evident?

3 The Māori language.

4 This was 2003.

[1877] NZJurRp 183; (1877) 3 NZ Jur NS 72. In this case a Ngāti Toa chief in the Porirua District entered into a verbal agreement with the Bishop of New Zealand that tribal lands be given as an endowment for a school at Whitireia. In 1850 a Crown Grant was recorded for establishment of a school on certain trusts. No school was ever established. In 1877, Ngāti Toa sought declarations that the land be reserved for the use and benefit of the Ngāti Toa tribe, that the Bishop of Wellington be trustee, and that the Crown Grant be declared void and ultra vires. Prendergast CJ found that Māori had no ‘settled system of law’ and that an Act referring to the ancient custom of Māori ‘cannot call what is non-existent into being’. Even if it did exist, the Crown Grant impliedly extinguishes native title.

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Now this may seem really obvious, so we might just work through this one quite quickly. But it provides a base for my next slide which is going to focus on another contemporary issue in terms of these particular discussions. Some of us will know that in Wi Parata, Chief Justice Prendergast said that the Treaty was a ‘simple nullity’. He said it was a ‘simple nullity’ because Māori have no law. We’ve already heard this morning from Ani, Moana, and Linda, about tikanga as the first rule of this country. Prendergast CJ also said that Māori were incapable of performing the duties of, and therefore assuming the rights of, a civilised community. Moana also talked about this earlier when he took us on a journey from a Spanish Monastery. And lastly, Prendergast CJ said that Māori were barbarians without any form of law or civil government. This was the basis for his decision that the Treaty was a ‘simple nullity’.

I think it is fairly self evident how Māori in this particular context are dehumanised. Māori are constructed as primitive barbarians. Māori were therefore, as Moana said, seen as sub-human. According to Prendergast CJ, as sub-humans and barbarians Māori could not have any law – we could not have any law. When I first heard this, I had this rage, this absolute rage inside me. While I might sit here and think about this poor ignorant chap talking about the natives of New Zealand, the fact is he was talking about my tūpuna, he was talking about our tūpuna,6 and he was talking about me. Even now, at times when I hear, think about, or see some discourse on this case, I feel this place in me which I keep trying to oppress and keep contained, because I don’t know what I might do.

Inevitably, I wanted to look at this question of humanisation and dehumanisation of us as Māori, in terms of a contemporary debate which we are all very familiar with. I want to look at it in terms of three aspects of the seabed and foreshore debacle. The first aspect is the Court of Appeal case.7 Chief Justice Sian Elias delivered the main judgment. Her judgment, not surprisingly, is based on the assertion that sovereignty was transferred, ceded, acquired, obtained, or assumed. These are the words used in the case. Nor is it surprising that the judgment is based upon the repression of the Māori text of the Treaty, and thus the repression of tino rangatiratanga; and that the judgment gives primacy to the English version of the Treaty – which talks about sovereignty being ceded,

6 Ancestors.

7 Ngati Apa v Attorney General [2003] NZCA 117; [2003] 3 NZLR 643. In finding that the Māori Land Court had jurisdiction to determine whether the foreshore and seabed are Māori Customary Land, the Court of Appeal confirmed that customary title did continue after the British Crown’s assertion of sovereignty in 1840 and was not extinguished by any general or specific legislation. The Foreshore and Seabed Act 2004 was enacted in the wake of the Court of Appeal decision despite widespread opposition. The Act explicitly extinguishes Māori customary rights in relation to the foreshore and seabed.

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unfortunately. This isn’t surprising because this is version of the Treaty of Waitangi clearly supports the interests of the British and the interests of the dominant population of Pākehā in this country.

This prioritisation of the English text of the Treaty of Waitangi and the simultaneous silencing of te Tiriti o Waitangi – a document which asserts our peoples’ full humanity is an act of oppression. So in that moment, the Court of Appeal repeats once again this dogma, this orthodox position – once again, Māori have been dehumanised.

The second aspect of the seabed and foreshore debacle that I want to talk about is the government’s announcement that legislation would be introduced to ensure that ‘the rights of all New Zealanders’ access to beaches would be protected’. Again I think about the moment when the government chose to make such an announcement. Forget the fact that they couldn’t be bothered consulting their caucus. Nor did they bother talking to Māori at all. The mere fact that they made such an announcement once again indicates how Māori are dehumanised in these processes. Māori were pitted against all New Zealanders. The idea that Māori would want to take the foreshore and seabed away from all New Zealanders was constructed by the Crown in that moment and used to polarise. The Crown must take responsibility for the fallout that occurred. By choosing to make such a statement, pitting Māori against all New Zealanders, the Crown must be responsible for the division that followed.8

Thirdly, just to tie this together, in terms of the media and public opinion, I want to look at one article on this particular matter. The headline of this article read ‘Yes – there is an end to Pākehā patience.’ That comment was by Frank Hayden. Well hello! I wonder if we should try that one in this hui? ‘Yes there is an end to Māori patience!’ The other one I want to pull out was from an editorial in the Dominion Post where the editor said ‘[The Government’s decision to legislate] should be seen as a unifying act, not another cause for resentment and division.’ I sometimes wonder if these people even think about what they say, I really wonder. How does a decision to once again confiscate any remaining Māori property in the foreshore and seabed while leaving private titles to the foreshore and seabed intact amount to a unifying act?

8 This is a point that the United Nations Committee for Elimination of Racial Discrimination picked up on when they said: ‘The Committee remains concerned about the political atmosphere that developed in New Zealand following the Court of Appeal’s decision in the Ngati Apa case, which provided thebackdrop to the drafting and enactment of the legislation. Recalling the State party’s obligations under article 2, paragraph 1 (d), and article 4 of the Convention, it hopes that all actors in New Zealand will refrain from exploiting racial tensions for their own political advantage.’ < G0 /414/09/PDF/G0 41409.pdf?OpenElement para 3> .

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I want to talk more about the dehumanisation that occurred in relation to the Treaty. When Paulo Freire talks about dehumanisation he is not just talking about the dehumanisation that occurs to the oppressed, he also talks about how, in the process of that oppression, the oppressors are also dehumanised by perpetuating the violence. So, Freire says all people are dehumanised in the process of oppression.

In terms of the practice of dehumanisation in the context of the Treaty, I would clearly highlight colonisation. It appals me to recount how Tariana Turia9 was made to apologise in Parliament for daring to associate colonisation with post-traumatic stress disorder and also with the holocaust. I have no words to explain how I feel. As Ani said earlier about colonisation – the big ‘C’ word

– there is still so much silencing that occurs preventing people from being able to talk about those experiences, from being able to actually construct from those experiences alternative new ways of engagement – and learning from that experience.

Silencing is a major factor of dehumanisation that occurred quite clearly in the context of the Treaty in Aotearoa. As I said earlier, in the foreshore and seabed case – what got silenced there clearly was the Māori text. What also got silenced there, as Moana said today, was the belief of our tupuna in our full humanity. Also, there were practises of denial. Again we see that in the context of the Treaty, any discussions of the Treaty whether they’re talking about resources or talking about relationship building, is a denial of the idea that we will meet each other kanohi ki te kanohi.10 Ani said earlier that the so-called ‘principles’ of the Treaty are based on a concept of partnership where Māori are seen not as an equal partner, but as a partner subordinate to the dominant partner. In choosing to subordinate the Māori text of the Treaty and to confiscate any remaining Māori property in the foreshore and seabed, the Crown continues to practice colonisation through processes of repression and erasure. And as Linda said earlier, at that moment, it is also the hopes and aspirations of Māori too that are repressed and erased.

One of our kuia said earlier today that if in fact at the time of the signing of the Treaty both parties had actually at least acknowledged what the Treaty was about, and implemented what the Treaty was about, then we would not have the Kīngitanga today. I want to take this point in another direction – had

9 Tariana Turia was a Minister in the Labour Government responsible for enacting the Foreshore and Seabed Act 2004. Refusing to vote in favour of the legislation, Tariana then resigned and established the Māori Party of which she is co-leader.

10 Face to face.

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we gone down this path of prioritising the Māori text of the Treaty, and if all that this might mean to Māori wasn’t erased, we might have avoided some of these practises of dehumanisation that have occurred.

I now want to link this discussion to Human Rights in Aotearoa. I found amongst the government documents the following statement from the Minister of Social Policy. It says:

The principal aim of human rights is to protect the dignity of individuals whatever their status or circumstances. Human rights require not only that citizens are protected from the abuse of power by governments but also that governments organise society in a way that enables all individuals to develop to their full potential.

Some of the key words and concepts in that statement for me are ‘dignity’,

‘protecting citizens from the abuse of power’ and ‘organising societies in a way that enables all individuals to develop to their full potential’. In terms of the foreshore and seabed debacle that is going on in this country, I ask these questions: whose dignity was protected? Whose dignity was not protected? In the moment when the government decided to say it was going to legislate to extinguish customary title to protect the beaches for all New Zealanders

– was Māori dignity protected in that moment? Which citizens were subject to the abuse of power by government in that moment? And thirdly, has the government organised society in a way that all people can develop to their full potential?

QuesTions anD ansWers

Question from the audience – When you link the third point with Ani’s argument, that if tikanga did rule, in a sense our tino rangatiratanga would have taken place. Therefore we would have been able to reach our development potential in that respect.

Response: There’s the answer. That’s the logical conclusion I would reach.

Question from the audience – But remembering Roger Douglas’s policies of privatisation and corporatisation, the rich got richer and the poor got ground down to the ground.

Response: So we all got to develop to our full potential there didn’t we?

Question from the audience – The real eye opener here is that a lot of people still believe that this Labour government is pro-Māori.

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Response: Yes indeed. The Frank Haydens of this world will certainly try to convince us of that.

Presentation resumes:

So, to me when we think about human rights and the Treaty and the relationships between these paradigms, I also think about the potential of them, not just the reality. I think it would be very interesting to use the following questions as a bit of a checklist. I’ve taken the questions from a government document, I have just rearranged them:

• What if the government had not acted the way they did with the foreshore and seabed, and the Court of Appeal had not decided to silence the Māori text of the Treaty and give primacy to the English text?

• What if, in fact, the dignity of Māori had been valued and protected? What

if that was somewhere in the thinking, in the hearts of these people?

• What if Māori were protected from the abuse of power by the


• Lastly, what if the government did organise society in a way that enabled

Māori and other people to develop to their full potential?

The government as the decision maker in this country should have considered a different approach to these issues. Earlier, Ani was asked how we might effect such change, how do we actually get to the place where tikanga Māori is going to be acknowledged as the first law in this country? As I said earlier I think that is a hugely important question. As are all of the questions about how we achieve these goals. But as big as they are, Ani would say ‘we just have to get over that’. Nike would say ‘just do it’ – just get over it and do it. We have to act. Paulo Freire says ‘part of the condition of dehumanisation is the struggle’, and the struggle requires us, compels us to act, to transform the structures, the situations that have affected us all in this ghastly relationship of oppression.

So, these are the questions that I would pose to anyone in government who might think about issues in relation to the seabed and foreshore, or any issues that impinge upon our ability as Māori to be fully human in Aotearoa. I believe that if my dignity was protected, if the dignity of our tūpuna had been protected, if our tūpuna had not been beaten for speaking our language, if our tūpuna did not have to fight and fight and fight just to be, just to survive, then we could have had the possibility of a journey where we would all be more fully human

– as Māori, in this country. Again I come back to what Paulo Freire said, it

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is not just the oppressed that are marked by the practice of dehumanisation, it is also the oppressor and the act dehumanising another who is marked by the process of dehumanisation.

To conclude my kōrero:

Mā te whakaatu ka mōhio, mā te mōhio ka mārama, mā te mārama ka mātau, mā te mātau ka ora.

For those who are not familiar with the first language of this country – ‘by discussion cometh understanding, by understanding comes light, by light comes wisdom, by wisdom comes life’.

Nō reira, e te iwi tēna koutou, tēnā koutou, tēnā koutou katoa.11

11 Greetings to one and all.

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