Academic journal article Chicago Journal of International Law

International Law / Intercultural Relations

Academic journal article Chicago Journal of International Law

International Law / Intercultural Relations

Article excerpt

PERSPECTIVES

New Zealand Government is a great place to work if you're interested in public policy. Our Westminster system of government means that it is generally possible to get things done in a more coherent, less "adulterated" form than in the U.S. system.1 The career public service position of Deputy Secretary for Justice (Public Law) in the New Zealand Ministry of Justice is an especially stimulating one. It gives me an opportunity to advise Ministers on a wide range of policy areas2 and to put to work whatever it was I learned in studying law, economics, and public policy at Yale Law School.

Of all the policy issues I have dealt with, those involving indigenous peoples have been consistently the most challenging. The indigenous Maori people of New Zealand comprise a growing 15 percent of the population and are disadvantaged economically and socially. The complexity of the issues is startling-those involving Maori are usually steeped in history or at the cutting edge of political alienation and economic disadvantage. They often involve consideration of likely judicial decisions with little guiding precedent, and are always delicately poised in the political ether. Their far-reaching implications touch virtually all areas of Government policy, including our unwritten constitution. Having studied and observed the federal Canadian and U.S. governments grappling with similar issues with respect to their First Nations and Native Americans, I can say that at least the same degree of complexity exists in those countries.

In this first issue of an important new journal about international law, I offer a perspective of these three liberal democratic states' relationships with indigenous peoples. I argue that the dynamics in these relationships-and the norms that govern them-are similar to those between sovereign states. By extension, as the world becomes more complex, "international" law seems on its way to both losing its conventional identity (as rules that are primarily accessed through the keyhole of Westphalian nationhood), and acquiring a new, more universal character (as norms that govern interactions between individuals and groups on a global basis). International law is no longer either international or law.

I. INDIGENOUS PEOPLES AND TREATY SETTLEMENTS IN NEW ZEALAND

The Treaty of Waitangi, signed by the British Crown with representatives of Maori tribes in 1840 granted sovereignty (or kawanatanga) to the Crown while guaranteeing protection of te rangatiratanga (or chieftainship) of Maori which also extended to them the rights and privileges of British citizens. The Treaty has never been formally incorporated into domestic New Zealand law per se. But it has acquired increasing political and legal weight since the 1980s. A number of statutes refer to it; successive Governments have promised to honor it; and, the general courts and a specialist tribunal have decided that where it is incorporated into law its meaning is somewhat more constraining than Government tended to believe.3

As a Treasury official in 1994-95, I was one of the leading advisers to Ministers of the New Zealand Crown on the first major settlement of an historical grievance -- with the Waikato-Tainui tribe. In 1865, the settler Government had invaded the land of Waikato-Tainui, conducted a military campaign, and confiscated 1.2 million acres of prime land. Successive generations of Tainui leaders had kept alive the grievance against this unjust behavior that had breached the Treaty of Waitangi. In 1994, they still wanted their land back: I riro whenua atu, me hoki whenua mai-as land has been taken, so it should be returned.

In 1994, a constellation of influences were pressing the conservative (National Party) administration to resolve outstanding historical grievances with Maori. Negotiations with Waikato-Tainui crystallized when both sides realized that there existed a way to accommodate Tainui concerns (to have much of the land returned that the Crown still controlled) as well as Government concerns to manage the fiscal risk of settlement within affordable boundaries. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.