Contents ml Preface —_ 4 The “Principles of the Treaty of Waitangi’ i T Introduction 1 li The Problem of Interpretation: The ‘Principles of the Treaty of Waitangi* a 2 The constitutional basis of the Crown's sovereignty over New Zealand and the Maori tribes MW I The Sources of Anglo-New Zealand Law 1 TI Constitutionality IZ IL Sovereignty 13 IV Constitutional Conventions 17 ¥ The Treaty of Waitangi: A Conventional Basis? 19 VIThe Treaty of Waitangi: Was It Legally Necessary? 21 1 The relevant prerogative powers 21 2 The constituent power 22 3 The exercise of the constituent power 25 WII The Treaty of Waitangi: Why Was It Legally Necessary? 30 VIII The Political Sovereignty of the Early Setlers 41 le 1X Maori Sovereignty 45 1 A redistribution of legal sovereignty? 6 2 Maori autonomy under existing constitutional __ arrangements 49 3 The Treaty as a judicially enforceable limitation of the legal sovereign 54 ‘X Towards a New Zealand Constitution 63 3 The common law sources of Maori rights and a brief legal history of Maori land cal Ill Maori Land: A Brief Legal History I Property rights and customary law 72 a —Sz=e. es eee Bie BRE HEHEEEEE EE. A ——— ‘ytd Conrenrs Contenr ti 2 Customary tenure uM ¥ Indian Treaties in American Law 19 ‘é 3 Post-contaet experience TH I The status of Indian creaty rights 7 2 The interpretation of American Indian treaties 157 4 The legal status of Maori customary law 83 Vi indian Treaties in Canadian Law 158 t P 1 The legal status of Canadian native treaties 158 i te Fresumeston af onelniie a a Srpailen treaules and Maori claims: similar IU The General Introduction of English Law 90 a TAC HFaEReots lop OR Candie nclan tices al IV The Extent of a General Introduction af English Law 92 WTA THInREAUGU: SE Gaacdicd etcinceiteeas, oe V The Contemporary Legal Status of Maori Customary Se PSE Aenean statateeal oe ing: treaty rights 164 Law ie Vt Consiusion i 166 5 ee af Maori praperty rights: common law a 7 Treaty rights and international Inw 187 { Introduction 97 (International Law; The Law that Binds States 167 {| Feudal Title 98 ' U The Sources of International Law 168 | Does feudalism follow the flag? 99 III The Status of International Law in New Zealand 2 The introduction of feudalism too ‘Sourts WL 3 The necessity of feudalism lol i { Monisim and dualism WL 4 The basis of the doctrine of aboriginal ile 103 i 2 Transformation and incorporation 172 $ The Marshall Court (US) and aboriginal title 108 A (V Conventional International Law: The Treaty of 6 Aboriginal title in New Zealand (2 ¥ Symonds (LH47)) | 108 { ‘Waitangi as a Treaty of Cession 176 7 Crown-recognized into Crown-derived aitle M2 | | The recognition of Maori statehood in 1840 176 III An Outline History of the Doctrine of Aboriginal : 2 The Treaty of Waitangi as an international treavy Title in New Zealand Courts 113 ; | of cession 8 |The Mi Parara approach ' 3 3 The international law doc of estoppel 180 3 oe title [nthe Privy Council and local ta 5 4 Treaties of cession in international law: state ’ 5Us i 3 Aboriginal title in Australia and Canada 126 | ; Tae eT ete a i 4 Te Weehi v Regional Fisheries Officer (1986) 130 | nberiatlongl: (aw: (ek. - ae 5 The nature of an aberiginal title 132 | é sThe“ulseaual reais doctrine tes 6 The extinguishment of an aboriginal citle ins 1 Treaties of yi eae | 1S SMart notaries ie ve es of protection at international law 186 General International Law and Maori Claims 188 6 Treaty rights and the common law; the Treaty as a self- 1 The Treaty a$ part of conventional international contained source of rights 145 5 law 138 : 2 Guardianship 189 tncredueion Las 3 Rangatiratanga and self-determination for I The Varieties of “Treaty! 145 ‘peoples’ loa 1 Treaties of cession 145 b 4 Indigenous rights: recent international 2 Treaty of protection 146 developments 203 3 Multilateral and bilateral treaties 147 : 5 The right to propery 29 4 American Indian treaties 147 6 The right to culture 2H 5 Distinguishing the varieties of ‘treaty’ 148 4 7 The right to development 2a MI Treaties af Cession at Common Law 149 4 8 General international law and indigenous rights 215 186 9 Equality and discrimination 26 IV Treaties of Protection at Common Law| International Law Rules of Treaty Interpretation 1 When will the [ncernational law rules oF T ate erpretation be available if New zealand law! 2 Treaty interpretation: the three schools of thought 3 The obligation of good faith 4 The general means of interpretation § The interpretation of plurilingual cexts 6 International rules of interpretation, the ‘American carion of construction of Indian law and (he Trealy of Waitangi WII Some Concluding Observations 4 The fiduciary duty of the Crown to the Maori tribes! { Introduction I The American Cases Ill The Canadian Cases IV The Fiduciary Doctrine V The Fiduciary Doctrine in New Zealand 1 The Maori Council case / 2 Rasource-related aspects of the fiduciary doctrine Vi Some Concluding Cbservations 9 The principles of statutory interpretation, administrative law and practice and the Treaty of Waitangi I The Effect of Statutes on Maori Rights ILA Diagrammatic Summary; The Legal fnterrelation- ships hits 10 Introduction: Parliament and Maori I Parliament Legislates against a Constitutional and Legal Backdrop I The Treaty in the Legislative Process IW Non-Resource Related Treaty Rights 1 The criminal justice system 2 Maori family relations 3 Probative aspects of Maori customary law: the Treaty of Waitangi and civil procedure 4 Language, education, and health 19 240 2d 246 Rat 247 251 163 281 283 285 286, 290, 292 th The Treaty of Waitangi Act: the Waltang! Tribunal inal Claims and Dispute Resolution ma Mechanisms in the United States, IL Aboriginal Claims Mechanisms in Canada IV Aboriginal Claims in Australia V The Waitangi Tribunal 1 Procedure and evidence 2 Interpretative aspects 3 Remedies 4 Illustrative claims VI Historie Claims: The Deed and Grant Game L Deeds of sale (the Ngai Tahu claim) 2 Common law principles applicable to these deeds 3 Crown grants 12 The Maori Affairs Act 1953: the Maori Courts and Maori land tenure I Maori Freehold Land 1 Individualized and fragntented title 2 Partition (1 What Is ‘Maon Land’? ILI The Maori Land Court IV The Multiple Ownership of Maori Freehold Land | Succession 2 The management of land in multiple ownership J Approaches to reform 13 A jurlsprudential epilogue: ‘law’, ‘rights’, ‘principtes’, conspiracies, and the Treaty of Waitangi I [nteoduction I The Concept of ‘Right” | Hohfeldian analysis 2 Rights discourse 3 Natural ‘law’, natural ‘rights! 4 Dworkin’s ‘rights" analysis 5 A ‘New Zealand common law’? 6 Conspiracies everywhere 297 27 302 M4 m6 309 Mi au as 321 322 326 428 433 333 333 336 341 4a MT 347 149 352 374 an 373 375 377 380 381 13 ee ll erti(—ts—sSs—s—s—C—~—SCSYPreface This book began as a short project Lo explain the legal parametert of Maori claims under the Treaty of Waitangi to a general audience. By completion of the first draft it became clear that the text was (oo detailed and advanced tor the layperson, [t was revised with a reorientation towards those with A particular interest in Maori issues, in particular students of public and Maori law. ‘Qver ten years ago when I first started exploratory researeh into Maori law, it was a neglected field. Nowadays things have changed significantly. The New Zealand legal community hns become more used to Macri issues and is coming (o grasp the all-pervasive character of these claims, One ‘ould be hard-pressed to think of any area of New Zealand law that does ot have some Maori aspect to it. This book attempts to give a unified and comprehensive account of the legal character of Maori interests associated with the Treaty af Wattangi, A number of writers have locked at legal aspects of Maori issues, but these have always had a particular angle of inquiry, The availabi lity of these secoumts has generally been limited to those with access 10 a major research library. The aim of this book is not only 10 provide greater access but ake to connect the various legal approaches. Those familiar with my work will recognize much of this baok, | have strearslied and included a loc of material which in one Form or another has appeared already. However there is a lot of new material. Some of this new material has been revised in the course of preparation of this text due co recent developments in the courts and the engetment of legislation (such as the Runanga bwi Act (990), For instance, my expectation that itually courts could consider the Treaty of Waitangi a5 a ‘relevant considezation' in the exercise by public officers of discretionary decisian- making powers [1990] VZL/ 16) came to pass much sooner chan envisaged (Attorney-General y NZ Méoré Council Court of Appeal | November 1950, GA M790: the ‘tadio-frequencies case’). Similarly, revisions have taken imo account the recent judgments of the Supreme Court of Canada in Rv Sparrow [1990] 4 WWR 410, The second chapter makes mare explicit the Whig basis of legal concepts of sovereignty and attempts a critical assessment of the responsiveness of Angla-Commoawealth conti fultonalism and structures of governance lo Maori elaims, This sharper appraisal of orthodox constitutional theory was aceasined by an invitation Preface sit 1 dress the Seventh Annual Conference of the Stout Researsh Centre for the Study of New Zealand Seciery History and Culture in ington, August 1990. The conclusion of Chapter 2 contains a very poited summary of this paper. All of chis, and much else (such as the Jurisprudential epilogue’) as well as the very act of connecting and relating the different approaches, is new, So far as amy general approach has been taken, 1 have tried to concentrate on the law as it is and may develop in the future. The legal situation isin an extremely uid, formative state. This beak is, then, not so much legal history a3 contemporary law, The historical material has hot been excluded from chis orientation but, rather, has heen used to clarify che present. A thorough legal history of Maori-Crown relations, indeed of ninteenth century New Zealand in general or anything resembling such a tradition, is sorely needed. Besides the emphasis on the contemporary dimension of the law, the other general approach of this book has been (9 use comparative material, This methodology has become an established feature of legal activity in che area of Maori sights, The North American ‘nlaterial has been especially influential, as this bock shows, This book is aimed primarily at lawyers: however, it is 1 be ‘expected that many nen-lawyers with a Strong interest in Maori issues will want {o consult it. Consequently some effars is spent explaining basic legal soncemts already familiar to these with legal training, may also be added that this book is set squarely within a Pakeha gal paradigm, The book aims co show how Maori issues ci dd with the Treaty of Waitangi are situated within this paradigm. Although my own Views are offered throughout, in che end it is Up to readers to make their Own assessment of this paradligm’s sesponsiveness 10 Maori. Whatever ‘opinion one reaches on the relationship between Maori issues and the Pakeha legal system, one canner avoid its dialectic character. Similarly, any meaningful realization of and debate over Uhe shortcomings of the system must be founded upon an informed awareness of its Sifengths as well as weaknesses. In closing my paper to the Stout Conference in 1990 T commented that's bicultural constitution and legal system ‘can only occur where all Treaty parties are will gto explore, explain and adape their own culturally dictated ideas of governance’ and social Organizarion, J have purposefully avoided cluttering ihis book with compendious footnotes. References have been given where appropriate and | have tried '0 lnclude major Supplementary and secondary sources in footnotes. There is meithee a bibliography nor a table ‘of cases and statutes; Sompensaiion hos in part been made through use of the footnotes to indicate supplementary. sources, This book deals with the copie of my doctoral dissertation in two comparatively brief chapters, The fuller exposition of this argument will be provided in a forthcoming bok far Oxlord University Press, Oxford,