It is an often-repeated truism that Te Tiriti O Waitangi, as an instrument of international law, is not binding on New Zealand law unless it has been expressly referenced or incorporated into the domestic legislation. This legal position has frustrated Māori who, for generations, have sought to have the rights contained in Te Tiriti upheld by the courts. It represents one of the biggest impediments to the recognition of Māori rights.
Having made the decision to write a LLM Dissertation next year, I have been reflecting a lot lately on the issue of assessing a legal position in a Kaupapa Māori Framework rather than the dominant Westminster Framework. The legal analysis set out in paragraph one is a distinctly Westminster analysis of the current legal position of Te Tiriti O Waitangi. The problem with adhering to the Westminster Framework is that it will, be definition, favour the rights of the colonisers over the colonised. Māori rights can never be fully realised within the Westminster Framework, the system itself will never allow it. It is only within a Kaupapa Māori Framework that Māori rights can be upheld in their entirety.
That is why it is imperative for us as Māori to analyse documents like Te Tiriti o Waitangi from a Kaupapa Māori perspective. Tikanga Māori is a living body of law which needs to be encouraged to grow and develop. As Māori lawyers, we have a responsibility to contribute to the growth and development of Tikanga Māori and use a Kaupapa Māori Framework whenever we approach a legal issue.
Te Tiriti o Waitangi represents an agreement between Iwi Māori and Iwi Pākehā. It is not an International Treaty, rather, it is an agreement grounded in the Mana and Tikanga of Ngā Puhi. It recognises institutions and rights that flow through Tikanga Māori, uninterrupted from time immemorial. The rights and obligations contained in Te Tiriti remain valid rights and obligations today – while the Westminster Framework does not recognise them, Tikanga Māori does.
It is time to reject the notion of Te Tiriti O Waitangi as an instrument of international law, defined solely by the colonisers legal system. Instead, we should adopt a legal analysis which states that Te Tiriti is an agreement grounded in Tikanga Māori and the rights and obligations contained therein have become, in their own right, rules and principles of Tikanga Māori. Leaving aside for a moment the issue of using the Westminster Courts to apply and uphold Tikanga Māori, by grounding Te Tiriti in Tikanga, there is room to make a strong argument for the formal, legal recognition of its rights and obligations. For the Common Law does provide a useful concession to the colonised in its recognition that the customary law of indigenous peoples remains valid law within the Westminster system unless it has been expressly abolished.