Woven law : Te Nakahi and the re-storying of sovereignty in Aotearoa/New Zealand

Jonathan Harlen

doi:10.25918/thesis.174

In 2014 the Waitangi Tribunal report He Whakaputanga Me Te Tiriti concluded that Māori iwi did not cede their powers of mana motuhake and te tino rangatiratanga to Great Britain upon the signing of the Treaty of Waitangi, and that Māori retain legitimate expectations that law-making power in Aotearoa/New Zealand should ultimately be shared. Since the publication of this report there have been calls by leading jurists to explore alternative legal narratives to challenge the formal doctrine of exclusive parliamentary sovereignty maintained by the Crown, and to search for a more inclusive sovereignty jurisprudence to ground the emergence of genuinely plural spaces in which Māori can independently exercise their own law. In practice, Māori and the Crown are already engaged in negotiating interlegal spaces, albeit in a piecemeal fashion. Two examples of this process are the innovative natural resource governance regimes set out in the Te Urewera Act 2014 (NZ) and the Te Awa Tupua (Whangānui Claims Settlement Act) 2017 (NZ) . To date, however, this trend toward a new, if limited, practical legal pluralism 'on the ground' has not been reflected in the language and narrative of the common law , or in the ‘sovereignty-talk’ of the Crown. In particular, the sources of Māori law remain unrecognised both by the Crown and by the common law, and the doctrine of exclusive parliamentary sovereignty continues to limit any proper conceptualisation of these emerging spaces. This thesis looks to the first decade following the signing of the Treaty of Waitangi for inspiration in addressing this deficiency in our sovereignty jurisprudence. It focuses on the neglected Nākahi doctrine of Ngāpuhi tohunga Papahurihia (also known as Te Atua Wera), whose followers included the influential rebel chief Hone Heke and other senior Ngāpuhi chiefs, during the Ngāpuhi-led uprising against British rule which centred on Pēwhairangi/The Bay of Islands in 1845-46. It sets out the unique constitutional doctrine of ‘woven law’ developed by Papahurihia during the 1830s and 1840s, and it questions the accepted view of him as the leader of a primitive cargo cult apeing certain aspects of Judaism and Christianity. It further examines whether this doctrine can serve as a useful analogical source for contemporary legal scholars and common lawyers in Aotearoa/New Zealand, who continue to try to imagine (or re-imagine) a bi-cultural ‘Lex Aotearoa’ which might properly form the basis of a shared legal order. 1 Waitangi Tribunal (NZ), He Whakaputanga Me Te Tiriti: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, WAI 1040, 2014. 2 See the Rt Hon Dame Sian Elias, former Chief Justice of Aotearoa/New Zealand, in, ‘The Meaning and Purpose of the Treaty of Waitangi’, Maori Law Review, October 2015, available at http://maorilawreview.co.nz/2015/10/the-meaning-and-purpose-of-the-treaty-of-waitangi-dame-sian-elias/. 3 Hereafter Te Urewera Act. 4 Hereafter Te Awa Tupua. 5 See the discussions on legal positivism and parliamentary sovereignty in Dawson, J, ‘The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law’, Journal of South Pacific Law (2008), 12, 1, p60.

Woven law : Te Nakahi and the re-storying of sovereignty in Aotearoa/New Zealand

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Woven law : Te Nakahi and the re-storying of sovereignty in Aotearoa/New Zealand

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