Exploring the clash between Pākehā and Māori law

Dr Carwyn Jones’ New Treaty, New Tradition challenges the dominance of Western legal thought in Treaty of Waitangi negotiations, and argues that genuine reconciliation must involve recognition of Indigenous traditions.

Justice Joe Williams (left) and Dr Carwyn Jones (right) at the launch of New Treaty, New Tradition at Victoria University of Wellington’s Faculty of Law on 8 December 2016.
Justice Joe Williams (left) and Dr Carwyn Jones (right) at the launch of New Treaty, New Tradition at Victoria University of Wellington’s Faculty of Law on 8 December 2016.

A question posed by a boy to his father – ‘“What story are we going to have tonight, Papa?”’ – may seem an unusual way to begin a book about the Treaty of Waitangi settlement process.

But according to Justice Joe Williams, who spoke at the launch of New Treaty, New Tradition on 8 December at Victoria University’s Faculty of Law, the book invites us “to reimagine the way we do things.”

The book was about the “grinding up between te ao Pākehā and ture Pākehā, and te ao Māori and tikanga Māori,” said Justice Williams, and by “reaching back to an old way of law by story… [Dr Jones] works the treaty settlement process to suggest it is an opportunity to rebirth the first law of Aotearoa.”

Dr Jones, a senior lecturer in Victoria’s Faculty of Law and a leading academic in the area of Māori and indigenous peoples’ legal issues, said he wanted the book to “reflect a way of engaging with knowledge that reflected Māori life.”

Legal traditions respond to social and economic environments, and the use of story “serves to remind the reader that law is a human and social phenomenon concerned with relationships among people; law influences how people interact with the world.”

Dr Jones’ first job out of law school was working as a judge’s clerk at the Māori Land Court and Waitangi Tribunal, and the book grew out of his PhD dissertation. It examines how the resolution of land claims has affected Māori law, and the challenges faced by Indigenous peoples as they attempt to exercise self-determination in a postcolonial world.

“The very real danger for Māori and Māori legal traditions in interactions with the Treaty settlement process is that the effects may represent an ongoing colonisation of tikanga Māori rather than a healthy expression of tino rangatiratanga as part of a dynamic, living, legal culture.”

Dr Jones says the story that runs through his book is one of a settlement process that undermines the objectives of self-determination and reconciliation because of the pressures it places on Māori legal traditions.

“But it need not be this way. If parties to the Treaty settlement process take these objectives seriously, and pay careful attention to changes to Māori legal traditions that take place in the context of that process, a different story can be told—a story in which Treaty settlements signify not the end of a Treaty relationship, but a new beginning.”

Justice Williams agreed. Calling the work “both timely and ground-breaking”, he said it had the potential to be “a harbinger of a much bigger movement.”

“Look at the possibilities. We could be changing the way Aotearoa does law.”

New Treaty, New Tradition, is available from Victoria University Press [link].