The Evolution of Treaty Jurisprudence

By Baragwanath, David | The High Court Quarterly Review, January 2008 | Go to article overview

The Evolution of Treaty Jurisprudence

Baragwanath, David, The High Court Quarterly Review


In his Harkness Henry address in 1994 "The challenge of Treaty of Waitangi jurisprudence" (1) Sir Robin Cooke tackled that part of our jurisprudence which deals with its treatment of the indigenous people of New Zealand, in which he had played a dominant role. To be asked to provide an update of that address, effectively from the time of Lord Cooke's unprecedented move to the House of Lords, and to do so before this audience in the heart of Tainui, is a privilege and a challenge. (2)


In Candide Voltaire commented on human nature:

All is for the best in the best of all possible worlds. (3)

We tend to assume that the fundamentals of our jurisprudence are so well-settled that they can be taken for granted as sound. Yet the Law Commission's Juries research, undertaken by Dr Warren Young and his colleagues, established that while the institution of trial by jury was essentially sound, as practised it contained deep-seated flaws. (4) To achieve justice it required substantial change, on a continuing basis, of how we use it. Whether some review of Treaty jurisprudence is needed is a topic I have touched on in earlier papers. (5) Tonight I seek to place our developments in something of a comparative perspective.

The Maori reality

In "Vikings of the Sunrise" Sir Peter Buck wrote of the first great globalisers: the Polynesian navigators who opened up the Pacific as far as Hawaii and Easter Island and who are believed to have sailed as far west as Madagascar. Anne Salmond followed him using, in "The Trial of the Cannibal Dog", David Lewis's account of how Cooke's interpreter, Tupaia, was himself a member of that elite group, with special privileges, who maintained the skills of ocean navigation without compass, sextant or chronometer let alone GPS. Tainui's tradition of its arrival by great canoe is maintained today, as anyone knows who has visited the marae at Kawhia. The Maori fisheries renaissance, which has followed the restoration of fishing rights removed from Maori during the colonial process, is a partial restoration of the mastery of the trade graphically recounted by the 18th century French navigators cited in the Muriwhenua Fishing Report of the Waitangi Tribunal.

In "The New Zealand Wars" Jamie Belich showed that our traditions had got history back to front. The military elite who repeatedly defeated greater numbers and came close to throwing superior numbers of British troops into the sea had receded from sight. Only recently has a truer picture been seen, thanks to historians such as Dame Evelyn Stokes in her "Wiremu Tamehana".

More generally, it has taken the brainchild of Matiu Rata and the careful work of Justice Durie and his colleagues in the Waitangi Tribunal to bring home to non- Maori New Zealanders the gap between the promise of the Treaty of Waitangi and its performance.


My thesis this evening is that the problem of denial of indigenous values and achievement has not escaped the field of jurisprudence in New Zealand any more than it has internationally; that there is need to link that event with the otherwise inexplicable phenomenon of Maori social disadvantage and the offending which is a symptom of it; and that in New Zealand as elsewhere the law needs to heed Antony Anghie's lesson, that insofar as public international law is built on Vitoria's theory of how Spain could justify its seizure of Indian possessions in South America, it is a colonist's rationalisation that cannot resist analysis. Conferring on indigenous people the fundamental human right of dignity may be expected to contribute seriously to reversal of the unhappy social trends of which we see so much evidence in the criminal courts.

The unknown jurisprudence

It tends to be overlooked that New Zealand is more than simply a British colony, settled by colonists from "Home" who somehow or other acquired the right to rule the country. …

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