Following the sold-out panel discussion in Wellington, LawTalk speaks with two of the panelists and co-authors of the award-winning book on treaty law. With an introduction by Te Hunga Rōia Māori o Aotearoa Co-Tumuaki, Tai Ahu, co-authors Dr Carwyn Jones and Dr Damen Ward provide their insights on the current state of the law.
The relationship between the Courts and the principles of te Tiriti o Waitangi has been a focus of discussion for many years. To continue advancing the conversation, the Law Society, in partnership with Te Hunga Rōia Māori o Aotearoa, staged an event featuring co-authors Dr Carwyn Jones and Dr Damen Ward of the award-winning book Treaty Law: Principles of the Treaty of Waitangi in Law and Practice, published by Thomson Reuters.
“We are at a pivotal point in Aotearoa New Zealand that is marked by a period of dramatic change explained Tai. Part of this change is an awakened appetite to dive deeper into Indigenous rights and Treaty-based interests in academia and legal practice."
Tai, of Waikato-Tainui and Ngāti Kahu (Te Paatu) descent, says, “The relationship between Māori and the State is reflected in a sea change that marks a growing consciousness of Māori rights, adding momentum to a reinvigorated global movement in the rights area.”
“Historically, te Tiriti o Waitangi has been an important platform that constitutionally guides the relationship between Māori and the State. Conceptualising the extent of this relationship is now more important than ever."
Tai looks to the whakataukī, ‘He toka tū moana,’ (a rock standing firm in the sea) to demonstrate the bedrock of the Treaty as our constitutional arrangements, where the ebb and flow of politics run over it like a tide does over the ocean.
“This whakataukī is important because it speaks of resilience in a system where Māori rights and interests are very fragile and subject to the ebbs and flows of political change. As the current political environment illustrates, at the mercy of Parliament and the judiciary. It is therefore critical that all lawyers in Aotearoa New Zealand, can think creatively and deeply about that. Political change is an important test for Māori constitutionalism.”
Tai is quick to point out that while political tension exists, the constitutional arrangements between Māori and the State need to be robust. Our constitution needs to maintain and protect Māori customary rights and interests when balanced alongside the broader public interest.
“This interrelationship between te Tiriti o Waitangi is not just about Māori but also concerns a deeply fundamental issue of public law in Aotearoa,” says Tai, who actively encourages the legal community to become “hungrier for exploring what te Tiriti is and what tikanga is.
“We are seeing our judiciary consider and respect these principles in leading cases that contribute to and develop our interpretation of statutes concerning the Treaty and existing interests being read in.”
Trans Tasman Resources Ltd v Taranaki-Whanganui Conservation Board (SC 28/2020) [2021] NZSC 127
Takamore v Clarke [2012] NZSC 116
Smith v Fonterra & Ors SC149/2021 [2024] NZSC 5
Ellis v R SC49/2019 [2022] NZSC 114
“Right across the legal sector, we see Treaty-based issues being brought to the fore. This includes, but is not limited to, environmental law, property law, intellectual property, kaitiaki-based relationships with Māori and other tāonga, public law, private law – tikanga and Māori interests.”
Likewise, relationships within the profession are integral to protecting and progressing Māori and Treaty-based interests such as that enjoyed by Te Hunga Rōia Māori o Aotearoa and the Law Society. “These collective efforts will help forge our path forward, along with greater resourcing and educational opportunities such as that offered with the very valuable text crafted by Dr Carwyn Jones, Dr Damen Ward and Kevin Hille, which really should be on the bookshelf of every practitioner in Aotearoa.”
Turning to the authors of the Treaty Law book, LawTalk explores what motivated these authors to collaborate on this text and asks, “Why now?”
Dr Carwyn Jones argues a reference text of this kind was well overdue.
The book’s genesis came from Canadian litigator and Indigenous rights expert Kevin Hille.
While working at the Crown Law Office in Wellington, Kevin expressed his surprise that there was no text in New Zealand dedicated to setting out the Courts’ interpretation and application of Treaty principles.
The three authors then collaborated on the book representing a number of years' work and intensive research culminating in the analysis of more than 600 judicial decisions. The work was supported by the Law Foundation and by the “tireless work” of researchers Rhianna Morar, Rosa Brooke and Wiliame Gucake.
Carwyn explains the importance of being able to recognise the role that Treaty principles have played in asserting rights as set out in te Tiriti. The book is designed to help law students, academics, and practitioners “make sense of the relationship between the Treaty and the State and where we are today. Part of this is managing the difference between the two texts and then detailing more than 50 years of Waitangi Tribunal findings and recommendations alongside settled areas of law and all manner of public decision-making to show how this is applied today.”
Carwyn points to it being nearly 40 years since the historical judgment in the foundational "Lands" case.1 “Much case law, precedent, and understanding around how and when Treaty principles are applied have flown from that over the years. Assembling and making sense of this through an accessible resource was a gap in the legal space, and particularly important for those who have not worked in this sphere before.”
Carwyn says the book’s emphasis is “not to advance a particular view but rather provide an objective resource that articulates the current state of the law as it relates to the principles of the Treaty. We have also tried to demonstrate the application of the key Treaty principles: Partnership, Active Protection, and Redress.
Pointing to the book’s particular design toward the synthesising of case law, co-author Dr Damen Ward has a practical aspiration for the resource in that it distils what the courts have decided on the Treaty and Treaty principles by listing the various approaches of the courts in a structured way.
Damen’s aspiration for the book is to “provide a valuable resource to practitioners, by showing ways that the Treaty has been engaged in legal disputes, and by organising that information in an accessible way."
The book’s overarching purpose is to assist practitioners in navigating the dynamics of the law and the judicial approach to it across the legal landscape in Aotearoa.
Damen points to the timeliness and relevance of such a resource given the “increasing application of Treaty principles across a wide range of areas, specifically public law”.
“Our hope is for it to become a living resource that evolves alongside the law,” says Carwyn.