Seminar: Aboriginal Polity, Sovereignty and the Common Law

Introduction

What I would like to speak about today is the question of the limit, both of sovereignty and of the common law, in the context of colonialism and the presence of aboriginal polity. Taking this notion of “limit” as a starting point, I want to question the capacity of law to deliver justice to aboriginal peoples. I will argue that despite its pretensions to universality, the common law is the historical tradition of a particular group and cannot be applied, as it were, neutrally.

As with the common law, so too with the culturally particular concept of sovereignty deployed in modern Western constitutional law and jurisprudence. I am going to assume that, as in other settler states, New Zealand’s configuration of law and sovereignty has failed Maori. I am also going to assume that my audience will share my desire for justice. I will go a little further by stating that paradoxically, each time we try to push the law (and its field of sovereignty) toward justice, we risk re-inscribing colonialism on to Maori, and we therefore delay our own project of decolonisation. Not only does our law and sovereignty fail Maori, it also fails us as colonial peoples.

So while colonial settler states have moved away from the assimilationist policies of the past (in the face of determined opposition from aboriginal peoples ), settler notions of law and sovereignty still function for the most part in a space of universalism that assumes the fixity and applicability of European law traditions for all peoples, regardless of the vast cultural and indeed legal differences that exist between us as colonial people and aboriginals . Colonial ideas of law and sovereignty – legality and power – presuppose and support one another.

My argument will have to show that law is not always synonymous with justice and that one field of sovereignty is not sufficient in terms of the promise of te tino rangatiratanga . If we can, for now, accept the premise that law itself might prevent justice, then it is a short step to recognising that the particular configuration of common law and sovereignty in New Zealand requires limits. What I am arguing seems contradictory: that law can stand in the way of justice and that sovereignty must divide in order to succeed. What I need to do now, then, is to show why sovereignty and the common law require limits and point to two possible sources for that limit: international law on the one hand and the Treaty of Waitangi on the other.

The position that I am working towards will find that for a number of reasons, international jurisprudence is an insufficient constraint to the common law of a sovereign country and that the Treaty of Waitangi is better placed to provide this limit. So placed, the Treaty of Waitangi might provide a fundamental basis for a new jurisprudential and legislative project for New Zealand, reconfiguring law and sovereignty toward the project of justice by refusing their assumptions of timeless universality.

Sovereignty, Common Law and their Limits

New Zealand is a colonial state. Through the expansion of the British Empire, what we call the “Crown” acquired sovereignty in New Zealand. The colonists brought with them a conception of law and sovereignty fundamentally different to the political and legal traditions of Maori. To a large degree, the colonial state forcibly replaced the law-ways of the Maori with its own. The colonial state used its law-ways to its own advantage to the detriment of Maori. Despite the resistance of Maori, the exercise of te tino rangatiratanga promised in the Treaty was restricted. The question is, how do we best address this injustice? Can we do so entirely through colonial courts, using colonial law and operating within a colonial conception of sovereignty? My answer is, ultimately, no.

I want to signal here that for the purposes of this presentation, I am going to take a pragmatic position vis-à-vis the question of the cession of sovereignty and the Treaty of Waitangi: the basis of fact that I will work from is that New Zealand’s constitutional framework and government both assume that sovereignty was ceded, and for better or for worse, there is a considerable amount of legislation and jurisprudence to this effect. However, this pragmatism will not extend to the question of the utility of common law as something applicable to all people, particularly to Maori as an aboriginal and colonised people. Nor will it extend to the idea that our conception of sovereignty as unitary and indivisible is adequate for the project of justice. My position here is to recognise the sovereign reality of the New Zealand state and its common law tradition.

At the same time, I want to say that despite the real and substantive efforts that government and common law have made in order to accommodate aboriginality, justice requires that we go further than the common law tradition allows . My opinion is that justice requires two sets of limits: the first to our notion of sovereignty and the second to the common law, the code, if you will, of modern colonial sovereignty. Let me schematise my argument so far using the following five points:

1. The historical practices of colonialism have generated a series of injustices;
2. Colonialism operated in a sphere of legalism containing two related practices: sovereignty and common law;
3. Through the efforts of indigenous activists and communities, the colonial state has become aware of injustice vis-à-vis aboriginal people and has attempted remedy through the common law tradition;
4. Because the common law is bound up with the colonial conception of sovereignty as exclusive and indivisible, any remedy through the common law fails to accord justice because in the end, it is only our law and our conception of sovereignty that is deployed.
5. Law thus functions as a form of what James Tully refers to as ‘internal colonisation’ .

Illustration of the Limit

It would be too easy for me to force an argument by saying that all law is an injustice and that there can be no accommodation between settler societies and aboriginals. This is not, however, what I am saying. On a pragmatic level, colonialism has brought Europeans and Maori together and I believe that both cultures possess the legal and philosophical resources to live in justice with one another. There can be no question of any kind of radical geographical and social separation between indigenous peoples and settler societies in the present day. More importantly, however, I do not want to argue for any kind of separation that would limit the right of indigenous peoples to participate fully in the colonial polity. What I want to argue is that the concept of te tino rangatiratanga needs to be given the legal and political space for its own self-development by demarcating the limit to the law-ways of the settler polity.

Finally, following the aboriginal tradition of justice – one that is also a part of our own western conception – I want to stress that what we are seeking is also reconciliation. Reconciliation is not satisfied with punishment or estrangement from one another. Reconciliation instead seeks to bring people together under conditions of justice. It is worth noting here that the practice of common law can sometimes compel the Crown to give justice and achieve reconciliation, as with court decisions that lead to substantive negotiation. The Sealords agreement may be an example of this.

Clearly common law jurisprudence in New Zealand has, from time to time, attempted to recognise aboriginal claims. There have been many important occasions when legislators and judges have found within the law the means to accord Maori claimants certain rights and privileges that in some way derive from their status as aboriginals, that is, as the first inhabitants of the land. From its feudal beginnings, the common law possessed certain resources for understanding the legal status of others brought into the view of the sovereign through cession or conquest . As jurisprudence and the forms of state and sovereignty transformed over time, so too did the ways in which that recognition was extended. It can, however, be argued that there is a kind of relentless circularity in these exercises. To put it philosophically, as soon as the law comprehends the Other, it extends its own field of cultural value over the Other that it comprehends.

Paul McHugh writes that by the time of the British colonial project in New Zealand, a new interpretation of both law and sovereignty was beginning to shape British (and colonial) jurisprudence. The mid to late 19th century milieu of British colonialism was one of positivism, that is, a tradition of legal interpretation

that purported to render law a ‘science’. The lawyer’s task was the forensic and objective role of extracting the legal rule or command contained in the mass of legal sources. These sources…were now simply the ‘positive’ law of statute and case report.

If I understand McHugh correctly, he is saying that before positivism, the common law contained a kind of limit in that it recognised certain principles of justice that inhered within the community. These principles were thought to be immanent and reflected a relatively direct relationship between society and its law. As ‘natural’ principles, they might even serve as a check on the power of the sovereign. Positivism, on the other hand, sought to deduce the principles of law from the positive sources of case law and state practice. So the organic relationship that might have existed between a community and its law was transformed as law became a ‘scientific’ practice that often legitimated the actions of the state by reference to that state’s own self-interested actions.

When we combine this tradition of legal positivism with the particular constitutional machinery of New Zealand, where Parliament (in right of the Crown) is sovereign and where the judiciary has a legal power of review but can only recommend, we are left with an interesting situation. If law as science looked to the practice of state, there was little doubt that the Crown had recognised a certain degree of Maori sovereignty and autonomy. Clearly this had to be, and was, taken on board by New Zealand’s colonial judges.

But at the same time, the principle of undivided Parliamentary sovereignty meant that a New Zealand Parliament could, and did, enact statutes that expressly denied Maori rights that might have accrued to them under the traditional common law. This, I feel, is a tension that exists even in the present day, and as an example I would point first to the Court of Appeal decision in the Marlborough Sounds case and then to the Foreshore and Seabed Act passed shortly thereafter.

Ultimately, my argument is that progressive legislation and far-sighted legal decisions have not sufficed from the point of view of justice and that the sources of this insufficiency lie in two places: the first being the unchecked ability of Parliament to legislate without a limit that recognises the autonomous law-ways and te tino rangatiratanga of Maori, and the second being the culturally particular nature of the common law deployed by the courts.

Conclusion: Sources of the Limit

I am mindful of the fact that I have not proven beyond a reasonable doubt that both sovereignty and the common law require limits. But if you can accept what I have just said for the sake of argument, I need to conclude by looking at the solutions that may be at hand. The first limit that we might look to would be international law. Particularly after the Second World War and the establishment of the United Nations, a new source of jurisprudence arose that spoke in the language of internationally recognised rights. Nations that wished to do so adopted the conventions of the United Nations through the machines of their own domestic legislatures. These conventions thus became legally binding upon sovereign nations to the extent that executive power could be held accountable internally on the one hand and internationally on the other.

There are a number of these conventions that New Zealand has adopted and several of them have been used sources of rights for Maori. Examples of these include the 1948 Universal Declaration of Human Rights, the 1966 Convention on the Elimination of All Forms of Racial Discrimination and in that same year, the Covenant on Economic, Social and Cultural Rights.

The problem with these covenants is that they fail to act as sufficient limits given the fact that they derive from a context that is premised upon the ideal of undivided and exclusive state sovereignty. Further, and like all settler colonial states, New Zealand has shown itself to be relatively unmindful of international criticism in relation to the treatment of aboriginal peoples (as was evidenced by the reception of the report of the UN special rapporteur on indigenous rights) and rather active in making certain that special aboriginal rights that are seen to impinge on the unitary notion of Western sovereignty do not become part of international law.

Instead, I would like to suggest that an effective limit to the problematic exercise of Parliamentary sovereignty and the culturally limited reach of common law lies in the Treaty of Waitangi. The Treaty contains provisions that, properly understood, draw a line between the exercise of the common law and sovereignty on the one hand, and te tino rangatiratanga on the other. Paradoxically, what I suggest is that Parliament should decide to limit its own power by incorporating the Treaty as a justiciable instrument. This is not a new suggestion. In 1985, a White Paper on a proposed Bill of Rights argued that Parliament had the power to limit its own power if it saw fit and this power was cited as a possible mechanism for entrenching a Bill of Rights that would provide Parliament with a supreme law and include statutory reference to the Treaty of Waitangi.

Clearly, there are hazards with such an approach, and as when the idea was first introduced, it is likely that there would be opposition even from Maori. In my paper I expect to show that the inclusion of the Treaty as part of Parliament’s supreme law would encourage the opening and development of the promise of te tino rangatiratanga and accelerate our journey towards justice and reconciliation.