Human Rights & The Treaty of Waitangi Seminar Legal Research Foundation/Human Rights Commission

1. Is Te Tiriti o Waitangi a Human Rights Document?Is the Treaty of Waitangi a Human Rights Document?Manuka HenareUniversity of Auckland Business SchoolMira Szászy Research Centre Human Rights & The Treaty of Waitangi Seminar Legal Research Foundation/Human Rights Commission Stone Lecture Theatre, Law School The University of Auckland 10 June 2003

2. Māori Philosophical Metaphysical & Historical View • To answer the question(s) – Tiriti/Treaty as human rights document • Focus on Te Tiriti – Māori language used & not English • Offer two short answers – • Te Tiriti - Māori version is a human rights document • The Treaty? – I’m not sure - it has no effect until parliament gives it effect - the Treaty is thus not a source of human rights, but parliament is the source of rights • Māori intentions in agreeing to a treaty with the British Queen • Māori philosophy/metaphysics & ethics are important • Historical context of treaty making is important (Henare 2001) University of Auckland Business School

3. Moral principles of leadership 1840? • What was the moral basis upon which Māori leaders ceded sovereignty in perpetuity? • No Māori evidence that cession was intended in 1840 • There is evidence that Māori wanted a protectorate relationship with the British • In return some settlers could live in Nu Tireni (Henare 2001) University of Auckland Business School

4. Philosophy, metaphysics & ethics • … Māori see themselves as descendants of spiritual powers, and as such are partners with those powers in a physical and spiritual universe. I have argued elsewhere that Māori philosophy and metaphysics constitutes a philosophy of vitalism and humanism, which I have defined as “the belief in an original singular source of life in which that life continues as a force which imbues and animates all forms and things of the cosmos(Henare 2001) University of Auckland Business School

5. Philosophy of Vitalism –Matrix of -Ethics 1830s Te ao mārama Te ao hurihuri Tapu Mauri Hau Mana Tika Whānaungatanga Wairuatanga Kotahitanga Tiaki Hohou rongo Kotahitanga Manaaki (Henare 2001) Ethic of wholeness, cosmos Ethic of change and tradition Ethic of being, potentiality, sacred Ethic of life essence, creation Ethic of obligatory reciprocity Ethic of authority, common good Ethic of finding the right way, justice Ethic of belonging, dignity of humanity Ethic of spirituality Ethic of solidarity Ethic of guardianship Ethic of peace, reconciliation, restoration Ethic of solidarity of people, natural world Ethic of love and honour, reciprocity University of Auckland Business School

6. University of Auckland Business School

7. Pluralism Ethics & Monism • Clash of world views, ethics & notions of society and nation • Pluralism ethics of Māori – vitalism & cosmos • Monist tendency in English ethics and jurisprudence 1820-1830s – utilitarianism, secularism and positivism (Henare 2001) University of Auckland Business School

8. Phenomenon of nation-building • Hongi Hika’s handshake with King George IV, 1820 • Rangatira Letter to King William IV, 1831 • Meeting James Busby, British Resident, 1833 • First national flag of Māori nation, 1834 - te Kara • Rangatira and international law – de Vattel & Ionian Islands • Declaring Independence “He Whenua Rangatira”, 1835 – • He Whakaputanga o Te Rangatiratanga o Nu Tireni (Henare 2001) University of Auckland Business School

9. He Whakaputanga o Te Rangatiratanga o Nu Tireni 1835Declaration of Independence • Clause 1. • Hereditary leaders gather at Waitangi, 28th October 1835 • Agree to act in a collective capacity • establish a Sacred Confederation of Tribes • declare the independence of Nu Tireni (Henare 2001) University of Auckland Business School

10. Declaration of IndependenceTe Whakaputanga o Te Rangatiratanga o Nu Tireni • Clause 2 • power & authority resides in leaders in their collective capacity • no legislative authority outside themselves • no function of government unless appointed & acting under law enabled by Congress (Henare 2001) University of Auckland Business School

11. Declaration of IndependenceTe Whakaputanga o Te Rangatiratanga o Nu Tireni • Clause 3 • hereditary leaders to meet in annual Congress • to frame laws for dispensation of justice • preservation of peace & good order • regulation of trade (Henare 2001) University of Auckland Business School

12. Declaration of IndependenceTe Whakaputanga o Te Rangatiratanga o Nu Tireni • Clause 4 • send Declaration to King William IV • thanks for acknowledging flag 1834 • reciprocate for friendship & protection • King’s subject allowed to live in Nu Tireni • help infant Māori state, be protector (Henare 2001) University of Auckland Business School

13. James Busby’ Explanation • The Māori Declaration of Independence 1835… • “…is founded upon the principle of the protecting state, administering in chief the affairs of another state in trust for the inhabitants, as sanctioned by the Treaty of Paris (1815), in the instance of Great Britain and the Ionian Islands, and as applied…in various instances, on the borders of our Indian possessions.” • (Despatch of James Busby to Gov. Bourke, 26 Jan 1837) University of Auckland Business School

14. Emmerich de Vattel Vol. 3 para.192 When a nation is unable to protect itself, it may obtain for itself the protection of a more powerful State. If this protection is obtained by a promise to do certain things, such as to pay tribute in acknowledgement of the protection granted…provided the contracting State reserves the right of governing itself, the treaty is merely one of protection, which is not in derogation of sovereignty… (Cited inHenare 2001) Protectorate Principle The Law of Nations University of Auckland Business School

15. Te Tiriti o Waitangi as a Source of Human Rights • Historically Māori sought and gained international support of an assertion of political, economic and social rights • Acquired an international identity • formal letters, national flag, declaration of independence, signed a treaty with Great Britain • Te Tiriti o Waitangi affirmed the right to exist as a nation and people • Following are rights inferred in Te Tiriti o Waitangi University of Auckland Business School

16. Tiriti o Waitangi Māori Version & translation Preamble – Freedom & Fundamental right to exist as a people Kia tohungia ki a rātou o rātou rangatiratanga me tō rātou wenua Queen desires to preserve to them their full authority as leaders (rangatiranga) and their country (tō rātou wenua) …tonu hoki te Rongo … Ātanoho peace and continued life as a Māori people …hei kai wakarite - Sends a Governor to assist (Henare 2001) University of Auckland Business School

17. Tiriti o Waitangi Article 1 - Right to self-determination Kawanatanga katoa o ō rātou wenua Governance for ever of their lands – note the plural usage of lands ‘ō rātou wenua’ (not country?) University of Auckland Business School

18. Te Tiriti o Waitangi Article 2 – Political, social, economic rights Tino Rangatiranga o ō rātou wenua ō rātou kainga me ō rātou taonga katoa Absolute power & authority of their lands (pl) (ō ratou wenua), their settlements and surrounding environs (kainga), and all their valuables (property) (taonga) (Henare 2001) University of Auckland Business School

19. Tiriti o Waitangi Article 3 – Civil & political rights, rights protected by law ..ka tukua ki a rātou nga tikanga katoa rite tahi ki ana mea ki ngā tāngata o Ingarani Royal protection, rights & privileges of British subject University of Auckland Business School

20. Te Tiriti o Waitangi The Additional Clause agreed to by Hobson Article 4 - Right to practice religion, customs & freedom to choose Ko ngā whakapono katoa…me te ritenga Māori ngatahitia All the chosen faiths (Anglican, Methodist, Catholic) and customary practices shall be protected (Henare 2001) University of Auckland Business School

21. Mana-Sovereignty • For Māori leaders the locus of power (mana) was located in the Kings & Queen of England • Māori personalism • For Busby, Williams and Hobson the locus of power (sovereignty) was located in the institution of parliament • English institutionalism • Mana & sovereingty identify the locus of power – Māori understood this (Henare 2001) University of Auckland Business School

22. Rights in Te Tiriti o Waitangi • Preamble • Freedom & Fundamental right to exist as a people • Article 1 – • Right to self-determination • Article 2 – • Political, social, economic rights • Article 3 – • Civil & political rights, rights protected by law • Article 4 – • Right to practice religion, customs & freedom to choose religion University of Auckland Business School