Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Yearbook of New Zealand Jurisprudence |
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.
66 Yearbook of New Zealand Jurisprudence
Vol 10
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.
2007 Human Rights and the Treaty
67
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.
68 Yearbook of New Zealand Jurisprudence
Vol 10
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.
2007 Human Rights and the Treaty
69
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.’
<http://daccessdds.un.org/doc/UNDOC/GEN/ G0 /414/09/PDF/G0 41409.pdf?OpenElement para 3>
.
70 Yearbook of New Zealand Jurisprudence
Vol 10
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.
2007 Human Rights and the Treaty
71
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.
72 Yearbook of New Zealand Jurisprudence
Vol 10
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
government?
• 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
2007 Human Rights and the Treaty
73
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.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZYbkNZJur/2007/10.html