Te Tiriti o Waitangi, the UN Declaration on the Rights of Indigenous Peoples and Constitutional Change: What is the Role of Judges and Adjudication?

Abstract

My focus is on realising tino rangatiratanga/mana motuhake for Māori under te Tiriti o Waitangi, sometimes understood as New Zealand’s founding constitutional document, and Indigenous peoples’ self-determination in the Declaration. I am interested in the ways in which states recognise Māori authority, often expressed through the practice and application of tikanga Māori, or Māori law. To achieve greater Indigenous peoples’ self-determination, at least to the extent required by te Tiriti o Waitangi and the UN Declarartion, would require constitutional change. So the topics overlap. I have 3 foci: 1. Adjudication and interpretation of the UN Declaration, including our right to self-determination, and Indigenous women’s rights at the international level; 2. Recent recommendations for constitutional change in Aotearoa/New Zealand: based on the Declaration and te Tiriti o Waitangi; 3. How New Zealand courts, and possibly other state courts, should address Indigenous authority and sovereignty. If there are any overarching theses, it would be that: - Judges have an important role in interpreting Indigenous peoples’ rights under the UN Declaration and in te Tiriti consistently with Indigenous peoples’ interpretations i.e., not deferring exclusively to state interpretations – from the Executive, legislature – or their own without reference to Indigenous peoples’ voices. - Judges need not feel they are undermining the state or their own authority when recognising and realising Indigenous peoples’ self-determination, or tino rangatiratanga, or mana motuhake.