10
CAN RECOGNITION OF MĀORI LAW ACHIEVE GREATER NATIONAL UNITY?
Jacinta Ruru
IN MY EARLY TWENTIES, IN THE 1990S, I spent years in university lecture theatres learning about classical natural law theory, legal positivism, primary rules and secondary rules, clear cases and hard cases, all containing underlying messages that law is objective and just. In many ways I struggled immensely with this colonial-inspired legal curriculum — I could not reconcile this standard of law with the stories my father’s family told. These stories are about dispossession of ancestral land from the 1860s onwards through insidious legislation and local government rules. I knew our experiences were not unique; all Māori families tell of similar accounts. Studying law gave me an insight into the power of law and the role of law in achieving colonial goals; it did not convince me that law operates on an unbiased, neutral terrain.
But the once-racist colonial goals have now changed to one of mostly hopeful reconciliation. The law (meaning legislation and decisions by the courts) now regards the Treaty of Waitangi as a legally relevant founding document for our nation, and the first laws of these lands — Māori law — of growing importance in holistically knowing our full legal system. It is this pivotal crossroad of our national story of law that I focus on in this chapter. One of our greatest challenges and opportunities as a country is for us to positively revisit and re-form our narrative of beginnings and futures. Together as a nation, we embarked seriously on this endeavour when we made the commitment to redress long-standing Crown breaches of the Treaty of Waitangi.
Our country is one of many former British colonies that are now similarly committed to reconciliation with their Indigenous peoples, but the Canadian Indigenous professor Taiaiake Alfred reminds us and warns us still:1
Something was stolen, lies were told, and they have never been made right. That is the crux of the problem. If we do not shift away from the pacifying discourse of reconciliation and begin to reframe people’s perceptions of the problem so that it is not a question of how to reconcile with colonialism that faces us but instead how to use restitution as the first step towards creating justice and a moral society, we will be advancing colonialism, not decolonization.
Indigenous law scholars around the world share similar messages. We often ask: can we move forward confidently, strongly and in good faith in our countries if we fail to acknowledge and dismantle the fictions upon which our countries have been built? The legal story, which has become our national story, is one we know well. It goes like this:
Once, not that long ago, significant tracts of land on Earth were known only to the Indigenous peoples. The expansion of the European empires into the ‘new world’ of the old homes of Indigenous peoples in lands now known as the United States of America, Canada, Australia and New Zealand has brought about complex legal quandaries that remain mostly unresolved despite more than 200-plus years of contact. The European colonialists arrogantly assumed sovereignty over the Indigenous peoples and ownership of all Indigenous property. While some of the English-styled domestic courts recognised Indigenous peoples’ land tenure, they did so typically by only permitting Indigenous peoples to occupy (but not own), if at all. This was often justified in law on the premise that the local Indigenous peoples were savage or barbarian. These findings enabled the courts to manipulate long-standing common law to conveniently declare components of the common law as not applicable in these New World colonies. While those early court cases have now been overruled as fundamentally wrong and in denial of standard common-law doctrines, the present legal quandary remains about how best to reconcile with Indigenous peoples who have had their sovereignty and property rejected. Many contemporary domestic courts, domestic legislatures, and international instruments are attempting to find palatable answers to how best reconcile with Indigenous peoples, and they are scratching the surface of the property issue with, for example, findings reliant on the common-law doctrine of native title. But silent, mostly, are our governments and courts on Indigenous sovereignty and Indigenous laws.
And, so, here I wish to explore the role of first laws — the laws of Indigenous Peoples — within contemporary settler legal systems. If settler legal systems wish to realise aspirations for legal reconciliation with Indigenous peoples, then an important component of this is to recognise Indigenous peoples’ laws. Our context: Aotearoa New Zealand, home to just over 4 million people, is a constitutional monarch system with unicameral representative democracy, no entrenched constitution and an Indigenous population — Māori — constituting about 15 per cent of the population. In this chapter I provide a brief insight into how Parliament and the courts are interpreting and applying Māori law. But first, I wish to preface the substance of this writing with a series of brave media stories led by New Zealander Gareth Morgan in 2015. Morgan’s writing provides a good contextual basis on which to introduce contemporary understandings about Aotearoa New Zealand and Māori.
The European colonialists arrogantly assumed sovereignty over the Indigenous peoples and ownership of all Indigenous property.
The Gareth Morgan Challenge
In the summer of 2015, the year began with a series of articles published in The New Zealand Herald by Gareth Morgan.2 Morgan is a well-respected Pākehā economist and philanthropist, and the founder of the left-leaning Opportunities Party. A pet topic he heralded in 2013 was a cat-free New Zealand (in his words, cats are natural-born killers who destroy our native wildlife). He had a point. Another pet topic has been the Treaty of Waitangi.
In brief, in 1840 many Māori chiefs officially consented to those from the United Kingdom living in Aotearoa New Zealand with the signing of the bilingual Treaty of Waitangi. The Māori-language version, which contains the most signatures, records that Māori would retain tino rangatiratanga (sovereignty) over their lands and treasures, but otherwise gave kāwanatanga (governance) rights to the British Crown. The English version has some significant translational differences, where it states that Māori ceded sovereignty to the British Crown, but Māori retained full exclusive and undisturbed possession of their lands, estates, forests, fisheries and other properties.
Neither the Māori- nor the English-language version was fully honoured by the British. The British asserted formal sovereignty of New Zealand in 1840 in part reliance on the English version of the Treaty and by manipulating a fiction of being the first civilised (in their eyes) persons to discover these lands. All this was despite having recognised Māori sovereignty (in the Declaration of Independence 1835) just five years earlier. Māori protest was immediate. Some protest action was peaceful (travelling to England to petition Queen Victoria), some was provocative (cutting down the flagpole flying the British flag), and some was violent. By the 1860s, the violence had escalated into the New Zealand Land Wars.
By the 1870s, with the European settlers now outnumbering Māori, legislation in place that enabled the forcible confiscation of Māori lands, and a judiciary endorsing a rhetoric of Māori as savages and the Treaty of Waitangi as a simple nullity, there were few glimmers of hope in our history of creating a nation together based on the Treaty of Waitangi aspirations (English or Māori version).
One significant turning point, though, was the creation of the Waitangi Tribunal in 1975, and then later the Office of Treaty Settlements as part of the Department of Justice’s focus on negotiating Crown breaches of the Treaty of Waitangi — historical and contemporary. Another was in 1986 with the first statutory recognition of the Treaty of Waitangi in a manner that made it mandatory for decision-makers acting under a statute to not act in a manner inconsistent with the Treaty’s principles. Today many statutes require that some level of regard be had to the Treaty principles. The Treaty is no longer regarded in law as a simple nullity. But many New Zealanders remain sceptical about honouring the intent of the Treaty.
In that summer of 2015, with some trepidation, I read Morgan’s four successive headline articles. I was pleasantly surprised. Essentially, he highlighted the achievements made towards recognising the Treaty of Waitangi and the rights of Māori since 1975. He accepted that Māori ought to be able to realise their self-determination within Treaty settlement claims. But he argued that it would be unconstitutional to allow further Māori sovereignty without the agreement of New Zealanders. He suggested policies that could be implemented to achieve better recognition for Māori, yet without impeding the constitutional rights of non-Māori New Zealanders. For example, he proposed that we could:
- create citizen assemblies for the public to discuss Treaty issues;
- establish a new upper house of 50/50 Māori/non-Māori representatives to approve legislative changes;
- make compulsory Māori language learning in school; and,
- formally ‘mov[e] beyond our Dutch name to the dual Aotearoa New Zealand’.
Does he have a point on this topic? Well, yes, certainly we need to do this and more. While Morgan’s proposed remedies hopefully capture a new mainstream acceptance of the need to, in his words, ‘honour the promises of 1840’, I do not agree with all of his points. He sees no need to give universal Māori rights of representation in local government, and he believes that the Treaty even in its modern ‘elastic’ form cannot be credibly stretched to legitimise all Māori aspirations, namely Māori claims of sovereignty.
This denial of Māori sovereignty, and property, goes to the core fragility of our society. It matters in law because our legal system has been built on a web of fictions and magic involving, for example, Europeans being the first to discover this country.3 So, if the remedies go deeper than Morgan’s suggestions, what are they? As Taiaiake Alfred said: the challenge is ‘how to use restitution as the first step towards creating justice and a moral society’.
So, yes, in Aotearoa New Zealand, since the mid-1980s, the Crown has sought to engage in a ‘fair and final’ settlement process of claimed historical breaches of the Treaty of Waitangi principles (essentially partnership, acting in good faith, active protection). The settlements aim to provide the foundation for a new and continuing relationship between the Crown and the claimant group based on these principles. Settlements thus contain:
- Crown apologies of wrongs done;
- financial and commercial redress; and
- redress recognising the claimant group’s spiritual, cultural, historical or traditional associations with the natural environment.
Most tribal federations have already settled historical Crown breaches of the Treaty of Waitangi or are on their way to settlement. Some significant cultural redress examples include the return of pounamu (jade) ownership to Ngāi Tahu, and the co-management of Aotearoa New Zealand’s longest river — the Waikato — involving four tribal federations.
But the Treaty claim settlements are negotiated within boundaries set by the government, which include strict monetary limits, no return of private land and no return of public conservation land. Gareth Morgan himself accepts this: ‘Justice and reparations have been a long time coming and, as generous as they might look to non-Māori, they’re just cents in the dollar for what Māori lost in terms of property.’ While Morgan recognises this, he (and many New Zealanders) are obviously nervous about the potential claims of Māori sovereignty.
The issue of Māori sovereignty was topical that summer, and obviously on Morgan’s mind as he wrote those four articles. In November 2014, the Waitangi Tribunal boldly took on the sovereignty issue. The Tribunal’s report on stage one of the Northland historical inquiry uses more than 500 pages to strongly conclude that Māori chiefs ‘did not cede sovereignty when they signed te Tiriti o Waitangi’.4
The Tribunal’s Northland report is resounding in its conclusions, and its words are so powerful that it is useful to reproduce as much as possible here:
Our principal conclusion is inescapable: [the chiefs of this area] did not cede their sovereignty when they signed [the Treaty of Waitangi];
… that is, they did not cede their authority to make and enforce law over their people and within their territories. Rather, they agreed to share power and authority with the Governor. They and [the Governor] were to be equal, although of course they had different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis. But the [Māori chiefs] did not surrender to the British the sole right to make and enforce law over Māori. It was up to the British, as the party drafting and explaining the treaty, to make absolutely clear that this was their intention. Hobson’s silence on this crucial matter means that the Crown’s own self-imposed condition of obtaining full and free Māori consent was not met [my emphasis added].
This conclusion may seem radical. It is not. A number of NZ’s leading scholars who have studied the treaty — Māori and Pākehā — have been expressing similar views for a generation. In that sense, our report represents continuity rather than change. Moreover, the conclusion that Māori did not cede sovereignty in February 1840 is nothing new to the claimants. Indeed, there is a long history of their tupuna [ancestors] protesting about the Crown’s interpretation of the treaty. (p. 527)
This denial of Māori sovereignty, and property, goes to the core fragility of our society.
The then prime minister, the Rt Hon. John Key (then leader of the National Party), immediately dismissed the Tribunal’s report by not acknowledging the sovereignty issue. Instead, he said something peculiar: ‘New Zealand was one of the few countries in the world that were settled peacefully.’ 5 This came to be dubbed a Planet Key moment (a phrase that was often used to describe his ‘out of this world’ comments):6 a denial of the historical reality of the long and deathly harsh New Zealand wars of the nineteenth century. The prime minister did not deny Crown wrongdoings and breaches of the Treaty. Rather, he stressed hope that the Tribunal finding would not delay the progress of a Treaty settlement in the North since the region needs money for economic growth. Herein lies the dilemma: the pressure on Māori to settle Treaty claims for desperately needed money. The Tribunal is still to report stage two of its inquiry. The issue of sovereignty is not going away.
Of particular interest for this chapter is the Tribunal’s observation that Māori ‘did not surrender to the British the sole right to make and enforce law over Māori’. If this is true (and I believe that it is), Māori law still has a place in our society today. Does the Aotearoa New Zealand government recognise Māori law today? Interestingly, yes. There is, and always has been, a semblance of recognition of Māori law throughout our state legal system. Parliament has enabled this through statutory incorporation of aspects of Māori law.
First laws — Māori laws
New Zealand’s Parliament has a long history of grappling with, and sometimes accommodating, Māori law. Historically, Māori law was recognised as existing but not desirable. For example, the preamble to the Native Lands Act 1862 states an aspiration to convert Māori customary land tenure into English tenure:
And whereas it would greatly promote the peaceful settlement of the Colony and the advancement and civilization of the Natives if their rights to land were ascertained defined and declared and if the ownership of such lands when so ascertained defined and declared were assimilated as nearly as possible to the ownership of land according to British law.
This 1862 Act established the Maori Land Court (then known as the Native Land Court). The Land Court now has a long history of dealing with Māori law. The contemporary statute — Te Ture Whenua Maori Act 1993 / The Maori Land Act 1993 — still recognises some aspects of Māori law as permissible to continue. For example, in accordance with Māori society, a child can be adopted in accordance with Māori customary laws and values, the practice known as whāngai. While Te Ture Whenua Māori Act restricts the testamentary freedom of those who own Māori freehold land to devise (or bequeath) only to those who have a blood connection with the owner and the land, a possible exception exists for whāngai. The Act permits owners to devise their interests in Māori land to whāngai children so long as the court is satisfied that the adoption has taken place in accordance with Māori law. This requires evidence of the Māori law to be presented to the court.
Another contemporary example of the recognition of Māori law can be found within the Resource Management Act 1991. Section 6 of this Act states:
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
…
(e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga …
The Act does not define the Māori language terms ‘waahi tapu’ or ‘taonga’. Essentially ‘waahi tapu’ means a sacred place, and ‘taonga’ means a treasure. There are many instances where the Environment Court has had to consider Māori law to determine whether a particular place is waahi tapu or taonga. For example, the high-profile case where a resource consent was sought to build a wind farm on a hill that to Māori represented the shape of a significant waka (boat).7 There are many legends associated with this place, as the court heard.
Further examples exist of other courts having to understand some aspects of Māori law. For example, the Family Court has had to consider whether artwork can be considered a taonga so as to classify the artwork as separate, and not shared matrimonial relationship, property. Significantly, the Supreme Court, in 2012, had to consider which law had dominance to determine where a Māori man be buried: Māori law (tikanga Māori) or the common law (i.e. law derived from custom or precedent, rather than from statutes). While the common law trumped in this specific case, the Supreme Court accepted that tikanga is part of New Zealand’s common law. For example: ‘Claims based on whakapapa [geneology] and tikanga observed by the hapū [subtribe] of the deceased are entitled to great weight in New Zealand law and may well prevail in a particular case’, and ‘Māori custom according to tikanga is therefore part of the values of the New Zealand common law’.8
Another example that I would like to explore is one where Parliament has innovatively incorporated Māori law into a Treaty of Waitangi settlement statute. Te Urewera Act 2014 explicitly references Māori legal principles without English translations, but moreover it endorses a world-first governance solution for a once-national park that aligns with Māori law.
Te Urewera Act 2014
On the eastern part of the North Island lies Te Urewera. This region, densely covered in native forest, was named a national park in 1954 and managed as Crown land by the Department of Conservation. The Māori federation of this area — Ngāi Tūhoe — never consented to their homeland being turned into a park. After years of negotiation between Ngāi Tūhoe and the Crown, a settlement has been reached. On 27 July 2014, Te Urewera National Park became simply Te Urewera: a ‘legal entity’ with ‘all the rights, powers, duties, and liabilities of a legal person’. Te Urewera Act 2014 marks for the first time in Aotearoa New Zealand’s history the permanent removal of a park from the national park legislation. Up until then, the Crown had been adamant that national parks must remain in public Crown ownership. The solution here devised is innovative, because it neutralised the ownership issue with a mechanism that made sense within the Māori legal system (personification of lands) and also has a theoretical base in Western law (legal personality).
Te Urewera Act makes it clear that Te Urewera ceases to be vested in the Crown, ceases to be Crown land, and ceases to be a national park. Te Urewera is now freehold land. Te Urewera is now not managed by the Department of Conservation but by a new Te Urewera Board consisting of mostly Tūhoe-appointed persons. This board is responsible ‘to act on behalf of, and in the name of, Te Urewera’. While Te Urewera still has a management plan, as is similarly required of national parks, the Te Kawa o Te Urewera plan released in 2017 is like no other plan. The opening words read:
Deliberatively, we are resetting our human relationships and behaviour towards nature. Our disconnection from Te Urewera has changed our humanness. We wish for its return.
The board, in contrast to nearly any other statutorily created body, including the Department of Conservation, is empowered to apply Māori values and law. The Act states that the board may ‘consider and give expression to “Tūhoetanga”’ and ‘Tūhoe concepts of management such as rāhui, tapu me noa, mana me mauri, and tohu’. These are important principles in Māori law concerning the sacredness and life force of the land.
The Act makes it clear that the board ‘must consider and provide appropriately for the relationship of [Māori] and their culture and traditions with Te Urewera when making decisions’, and that the purpose of this is to ‘recognise and reflect’ Tūhoetanga and the Crown’s responsibility under the Treaty of Waitangi.
Section 3 of Te Urewera Act beautifully captures the importance of this place:
Te Urewera
1. Te Urewera is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty.
2. Te Urewera is a place of spiritual value, with its own mana and mauri.
3. Te Urewera has an identity in and of itself, inspiring people to commit to its care.
Te Urewera and Tūhoe
4. For Tūhoe, Te Urewera is Te Manawa o te Ika a Māui; it is the heart of the great fish of Maui, its name being derived from Murakareke, the son of the ancestor Tūhoe.
5. For Tūhoe, Te Urewera is their ewe whenua, their place of origin and return, their homeland.
6. Te Urewera expresses and gives meaning to Tūhoe culture, language, customs, and identity. There Tūhoe hold mana by ahikāroa; they are tangata whenua and kaitiaki of Te Urewera.
Te Urewera and all New Zealanders
7. Te Urewera is prized by other iwi and hapū who have acknowledged special associations with, and customary interests in, parts of Te Urewera.
8. Te Urewera is also prized by all New Zealanders as a place of outstanding national value and intrinsic worth; it is treasured by all for the distinctive natural values of its vast and rugged primeval forest, and for the integrity of those values; for its indigenous ecological systems and biodiversity, its historical and cultural heritage, its scientific importance, and as a place for outdoor recreation and spiritual reflection.
While there are similarities between Te Urewera Act and the National Parks Act 1980 (such as the requirement to have a management plan and to ensure these lands are available for public use and enjoyment), the purpose for setting aside the land is subtly but importantly different. This is significant. Section 4 of the National Parks Act preserves national parks for their scenery, recreation and science. The National Parks Act does not recognise the importance of lands encased in national park boundaries as being culturally and spiritually important to Māori. The National Parks Act is a monocultural statute premising only Western values for preserving land. Te Urewera Act demonstrates a new bicultural way of articulating the importance of national park lands for a multiple of reasons incorporating Western and Māori values. Section 4 of Te Urewera Act reads:
The purpose of this Act is to establish and preserve in perpetuity a legal identity and protected status for Te Urewera for its intrinsic worth, its distinctive natural and cultural values, the integrity of those values, and for its national importance, and in particular to—
(a) strengthen and maintain the connection between Tūhoe and Te Urewera; and
(b) preserve as far as possible the natural features and beauty of Te Urewera, the integrity of its indigenous ecological systems and biodiversity, and its historical and cultural heritage; and
(c) provide for Te Urewera as a place for public use and enjoyment, for recreation, learning, and spiritual reflection, and as an inspiration for all.
This negotiated settlement is evidence that unity between the Crown and an Indigenous federation is possible even in scenarios where relationships have been very tense for a very long time. In the companion statute to Te Urewera Act, the Tūhoe Claims Settlement Act 2014 acknowledges some of this history with attached apologies from the Crown. For example, the Act records that in 1865 ‘the Crown confiscated much of their most productive land, even though they were not in rebellion’. After the land confiscation, ‘the Crown waged war in Te Urewera until 1871’. The Crown was responsible for the execution of unarmed prisoners and the killing of non-combatants. In 1870, Tūhoe were forced out of Te Urewera. As the Act states, ‘The wars caused Tūhoe to suffer widespread starvation and extensive loss of life.’ The atrocities continued. The government continued to use harsh tactics to acquire land. Of relevance to this chapter, the Act records:
In 1954, the Crown established Te Urewera National Park, which included most of Tūhoe’s traditional lands. The Crown neither consulted Tūhoe about the establishment of the park nor about its 1957 expansion and did not recognise Tūhoe as having any special interest in the park or its governance. National Park policies led to restrictions on Tūhoe’s customary use of Te Urewera and their own adjoining land.
The tensions between Tūhoe and the Crown are not all historic. For example, in 2007, about 300 New Zealand armed police raided Ruatoki, a small rural town within the heartland of Tūhoe. The armed raid was made pursuant to the Terrorism Suppression Act 2002 because the police believed Tūhoe members were conducting terrorist training camps. While 17 people were arrested on the day, only four people were later brought to trial and found guilty, and even then only on some firearms charges. In 2014, the police apologised for the raids. Moreover, in 2010, on the purported eve of the first signing of a settlement with Tūhoe (apparently the special signatory pens had been made and developed), the then prime minister pulled out of the agreement that was going to return the ownership of Te Urewera to Tūhoe. At the time, the prime minister was speaking at an unrelated evening meal event close by to the Tūhoe federation boundaries, and he made an outlandish comment about ‘having dinner with Ngāti Porou, as opposed to being with the neighbouring iwi which is Tūhoe, in which case I would have been dinner’.
Te Urewera Act is just one example of how respectful imagination can be used to create a legislative solution that is acceptable to both the Crown and the Indigenous federation. The Hon. Dr Nick Smith (National), who served as Minister of Conservation in 2014 (when Te Urewera Act was enacted) and also back in 1998 (when the Ngāi Tahu Claims Settlement Act was enacted, bringing with it the possible return of Aoraki/Mount Cook to Ngāi Tahu for a total of seven days), stated in Parliament in 2014:
… [I]t is surprising for me, as a Minister of Conservation in the 1990s who was involved under the leadership of the Rt Hon. Jim Bolger — who is in the House — in the huge debate that occurred around the provisions of the Ngāi Tahu settlement in respect of conservation land, how far this country and this Parliament have come when we now get to this Tūhoe settlement in respect of the treasured Te Urewera National Park. If you had told me fifteen years ago that Parliament would almost unanimously be able to agree to this bill, I would have said, ‘You’re dreaming, mate.’ It has been a real journey for New Zealand, iwi, and Parliament to get used to the idea that Māori are perfectly capable of conserving New Zealand treasures at least as well as Pākehā and departments of state …
Both Te Urewera Act and the Waitangi Tribunal Northland Report show how in one instance Parliament and in the other the Waitangi Tribunal are pushing the old colonial boundaries to ensure we take deep notice of what it means for a country that is serious on addressing reconciliation. These are two prominent developments.
Concluding comment
There remains an ongoing need to respectfully, passionately and imaginatively address the deeply ingrained wrongs that stem from when one country takes over another country. That is what has happened in countries like New Zealand, Australia, Canada and the United States. We as a country have made some real gains on the reconciliation front, but many of the acknowledgements are merely first steps and are legally vulnerable. Aotearoa New Zealand is at an early stage of this journey. While we have many challenges for relationship-building and true restitution, there are some glimmers of hope; these come from our brave Māori communities and Māori leaders, who have always pushed the Crown’s boundaries for justice and what is right, and from our allied friends and colleagues, who have bravely listened and acted on what must be just and right. Together we can build respectful futures. Many solutions for the unity of our nation lie within Māori knowledges and Māori law. The Te Urewera resolution is a powerful demonstrator of this. Ngā mihi. Mauri ora.
* This chapter builds on an address I made for the Elliott Johnston Memorial Lecture, ‘Why First Laws Must Be In’, Adelaide, Australia, 1 December 2015. See also my TEDx talk, ‘In New Zealand, This River and Park are Legal Persons’, Tedx, Christchurch, 28 October 2017, http://www.tedxchristchurch.com/2017/.
1 Alfred, ‘Restitution is the Real Pathway to Justice for Indigenous Peoples’, in G. T. Alfred (2005), Wasáse: Indigenous pathways of action and freedom. Toronto: University of Toronto Press. Available at http://chrr.info/files/AHF_reconciliation_paper.pdf. Note: I have used this quote from Alfred to centre some of my other work, for example, J. Ruru (2013). Indigenous Restitution in Settling Water Claims: The developing cultural and commercial redress opportunities in Aotearoa, New Zealand. Pacific Rim Law & Policy Journal, vol. 22, no. 2, p. 311.
2 G. Morgan (2015). ‘Gareth Morgan: Treaty justice triumph of commonsense’, The New Zealand Herald, 6 January 2015. Retrieved 10 January 2016 from www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11382188. ‘Gareth Morgan: One-sided tribunal process recipe for ongoing tension’, The New Zealand Herald, 7 January 2015. Retrieved 10 January 2016 from www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11382652. ‘Gareth Morgan: Co-operation needed to deliver rangatiratanga fairly’, The New Zealand Herald, 8 January 2015. Retrieved 10 January 2016 from www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11383199. ‘Gareth Morgan: We can honour 1840 promises without dividing the nation’, The New Zealand Herald, 9 January 2015. Retrieved 10 January 2016 from www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11383734. See also A. Morgan and S. Guthrie (2015), Are We There Yet? The future of the Treaty of Waitangi. Wellington: Phantom House Books.
3 Other Indigenous lawyers also observe the magic of law. For example, see M. Jackson, The Treaty and the Word: The colonization of Maori philosophy, in G. Oddie and R. W. Perrett (eds) (1992), Justice, Ethics and New Zealand Society. Auckland: Oxford University Press; and J. Borrows, ‘A Separate Peace: Strengthening shared justice’, in C. Bell and D. Kahane (eds) (2004), Intercultural Dispute Resolution in Aboriginal Contexts. Vancouver: UBC Press.
4 New Zealand Government, Waitangi Tribunal (2014). He Whakaputanga me te Tiriti, The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, Wai 1040 Wellington: Waitangi Tribunal, p. 526.
5 J. Key (2014). Interviewed by Radio Te Hiku, Kuaka Marangaranga (18 November, 3 p.m.), Te Hiku Media. Available at tehiku.nz/te-hiku-radio/kuaka-marangaranga/75/john-key-talks-to-radio-te-hiku.
6 The possible origin of this phrase is a parliamentary debate when Metiria Turei, then the co-leader of the Green Party, asked how things would work on ‘Planet Key’; see 684 NZPD 5269 (18 September 2012).
7 For example, see Unison Networks Ltd v Hastings District Council [2011] NZRMA 394.
8 Takamore v Clarke [2012] NZSC 116; [2013] 2 NZLR 733 at [94].