August 1995 Contents

The Treaty and Municipal Law

On the 7 April 1995 the Australian High Court in Minister for Immigration & Ethnic Affairs v Teoh (1995) 128 ALR 353 held that a convicted heroin smuggler from Malaysia, who was refused residence in Australia because of his criminal convictions, had a legitimate expectation that the immigration authorities would consider UN instruments on the paramount rights of children, and initiate inquiries into the effect his deportation might have on his children born in Australia. The majority of the court found that international instruments which had been ratified, even if not yet incorporated into municipal law, could generate a legitimate expectation that officials would act in accordance with them. As Dr Rodney Harrison noted in a recent paper, this and similar, if less dramatic, NZ judgments, open the way for international human rights covenants to be invoked in the context of administrative decision making by the executive ("Domestic enforcement of international human rights in Courts of law: Some recent developments" NZLJ August 1995 p256). In light of these developments it is becoming alarmingly anachronistic that the Treaty of Waitangi remains officially in the position the Privy Council left it in in Te HeuHeu Tukino v Aotea District Maori Land Board [1941] AC 308, outside the municipal law of this country until incorporated into it directly by statute. In a recently published essay, Sian Elias QC has argued that "it is time to recognise that the notion of arbitrary Parliamentary sovereignty represents an obsolete and inadequate idea of the New Zealand constitution. It fails to take account not only of the place of the Treaty in New Zealand history but also of developing principles of international law. The Treaty requires to be recognised as fundamental to our constitutional system by reason of its status as a compact with the indigenous peoples of New Zealand and because of the vulnerability of the indigenous people and the increasing international concerns for their protection." ("The Treaty of Waitangi and the Separation of Powers in NZ" in Courts and Policy. Checking the Balance Legal Research Foundation 1995). At the hui called by Sir Hepi Te Heuheu in response to the Crown proposals for Treaty settlements it was decided that priority should be given to "a constitutional review jointly undertaken by Maori and the Crown for the purpose of developing a NZ constitution based on the Treaty of Waitangi." (MH Durie "Proceedings of a Hui held at Huirangi Marae, Turangi" in VUWLR vol 25 no 2 July 1995). In the coming months, it is hard to see how debate about the status of the Treaty can be avoided.

 

Maori Land Court and Appellate Court

No cases this month.

 

Waitangi Tribunal

New Appointment to the Waitangi Tribunal

Te Tari Kooti (Department for Courts) Press Statement 18 August 1995

Roger Maaka has been appointed to replace Sir Hugh Kawharu who recently retired. Mr Maaka is a lecturer in Maori Studies from the University of Canterbury and is currently completing a short period of teaching at the School of Native Studies at the University of Alberta, Canada. He is of Ngati Kahungunu descent and an expert in the history and traditions of that iwi. This appointment takes the Tribunal strength to 16 members including the Chairperson.

 

 

Memorandum of Crown Counsel Concerning Raupatu and Proposed Interim Report

Wai 46 & other Bay of Plenty claims 28 July 1995

At the request of the Tribunal for a statement of the Crown position, and after receiving instructions from the Minister in Charge of Treaty of Waitangi Negotiations, "The Crown acknowledges that the confiscation of land, as it occurred in the Eastern Bay of Plenty region, constituted an injustice and was therefore in breach of the principles of the Treaty of Waitangi. The Crown is amenable to developing the precise wording of any statement on raupatu to be included in any Deed of Settlement in discussion with each claimant group, as a component of the negotiating process."

 

 

Amended Statement of Claim for Ngai Tahu

Wai 27. 6 July 1995

The claimants allege that the Crown in August 1994 unilaterally suspended negotiations to settle their claim in light of the Waitangi Tribunal report of February 1991 against the wishes and without the consent of Ngai Tahu. This action, together with the release of the Treaty claim settlement proposals in December 1994, are said to have effectively denied Ngai Tahu of the opportunity for a negotiated settlement. The claimants say that the Crown has acted in bad faith during the course of negotiations and in suspending them. The Crown has sought to impose terms on the reopening of negotiations which would deny Ngai Tahu recourse to legal redress in the Tribunal or elsewhere. The Crown settlement proposals including its fiscal envelope represent "unconscionable and gross breaches of the Principles of the Treaty of Waitangi." Accordingly, the claimants seek that the Tribunal urgently reconvene and make recommendations for the return of all state owned enterprises and Crown forest land within the Ngai Tahu takiwa (district).

[ed: the tribunal has not yet issued substantive directions in response to this amended claim. A hearing is unlikely while various High Court actions brought by Ngai Tahu are pending, including an action concerned with an earlier tribunal ruling on urgency.]

Other Jurisdictions

Hauraki Maori Trust Board & Ors v The Waitangi Tribunal & Ors

CP 171/95 & ors, HC Wellington, 31 July 1995. Ellis J

Several groups involved in litigation over the allocation of assets under the Sealords fisheries settlement of 1992 sought declarations or orders to prevent the Waitangi Tribunal from hearing claims that the Treaty of Waitangi Fisheries Commission (Te Ohu Kaimoana) had or might breach the principles of the Treaty of Waitangi in its current proceedings to determine the best allocation of the assets. The tribunal had itself heard argument and already issued an opinion that it could proceed to a hearing on the claims (see Maori LR May 1995).

Held: the tribunal should not proceed with its proposed enquiry because it would be premature as a matter of law to do so. The Deed of Settlement of September 1992 provided that, in addition to the 10% of national fishing quota already held by Maori under the Maori Fisheries Act 1989, the Crown would give $150 million to Maori to complete the purchase of a holding in Sealords fishing company whereby Maori would receive 26% of the national fishing quota. The Treaty of Waitangi Fisheries Commission was then to propose a scheme of distribution for pre-settlement assets (the 10% of quota) and a separate scheme for post settlement assets (the 26%). The Treaty of Waitangi (Fisheries Settlement) Act 1992 gave effect to the Deed. The current contentions concerned the scheme of distribution for pre-settlement assets and arguments surrounding the definition of iwi and the model of distribution to be used. The court noted the "prophetic" words of Cooke P when the Deed of Settlement was challenged in the Court of Appeal that "should any legislation be enacted in this field, there could be little point in bringing the matter again before the Courts until at least some years of experience have been gained, and perhaps not even then." Te Runanga o Wharekauri Rekohu Inc v AG [1993] 2 NZLR 301, 308. Noted that the commission considered itself bound to distribute the pre-settlement assets to iwi. Urban Maori claimants contended "iwi" should include more recent groupings. The commission was unfortunately stuck with the term "iwi" rather than the wider words of the Treaty referring to "chiefs, subtribes, and all the people of NZ" (article 2). This issue was before Anderson J in other High Court proceedings (see Maori LR July 1995). It was to be hoped the separate scheme for post- settlement assets would follow the pre-settlement principles.

The distribution model based on coastline length but also partly on population (mana whenua mana moana model) is causing contention. It would be a national disaster if this dispute is not settled by agreement. This judgment was about the timing in the use of people and resources for reaching that agreement.

The judgment should be read together with the Fisheries Settlement Report 1992 of the Waitangi Tribunal. The precepts of that report were followed in this judgment. Shortcomings noted in that report of the Deed of Settlement had been perpetuated in the 1992 Act. The provisions of the 1992 were to be interpreted in light of the principles of the Treaty and the resolve by Crown and Maori to settle fishing claims once and for all in a spirit of co-operation and good faith. The tribunal was correct in its opinion that the fisheries commission acted in some of its functions on behalf of the Crown, and in proposing a policy for the allocation of settlement assets was acting on behalf of both the Crown and Maori. While the tribunal was precluded by s6(7) Treaty of Waitangi Act 1975 (inserted by the 1992 Act) from challenging the settlement in respect of commercial fishing or fisheries achieved by the Deed of Settlement and the 1992 Act, it had been correct in its finding that it could look at the mechanism establishing what the Deed and Act meant and how they were to work. Nor did s9 of the 1992 Act (no court or tribunal to have jurisdiction to hear claims concerning commercial fishing or the Deed) preclude a tribunal inquiry.

When the commission reports to the minister a proposal for the allocation of pre or post settlement assets, there would only then be a policy proposed to be adopted both by the commission itself and by the Crown. The tribunal might then entertain claims in respect of the policy. However, despite submissions to the contrary, the commission had not yet made up its mind on a proposal for allocating pre-settlement assets. Detailed and "comprehensive" submissions from counsel for the commission, that no proposal had been decided upon and that work on a wide range of options was continuing, were accepted. The commission had not yet proposed a policy that could be the subject of enquiry by the tribunal. The commission had perhaps reached a low point in its search for agreement, but it was not at an impasse and had a working majority ready to press on. It would be unreal to expect commissioners not to be by now following or inclining towards a particular model.

An argument by Sir Graham Latimer and others that commissioners, including himself, felt overborne by the others was refuted by Sir Graham s actions, namely his public, unfounded and sad allegations that some commissioners had acted fraudulently.

The claims of various groups, including urban Maori, went to the heart of Maori unity and the future of iwi. Even the Treaty itself might be at stake. Accordingly, the court commended parties to accept a tribunal offer to stage a hui to seek a path to agreement in a forum traditional yet modern. This was an opportunity for statesmanship.

[ed: the decision is noteworthy also for including a page long Maori text recording its essential finding that, "e ai ki te ture, he wawe rawa te whai a Te Taraipiunara kia tirohia ngaa whakahaere a Te Ohu Kai Moana." The court accepted the approach of the commission - that there were no serious objections to the view that some mix of coastline length and population would be the basis of any final proposal, and that discussions were ongoing about what that mix might be. Even models for allocation said to be in disagreement with the commission approach, such as the Tainui "Takutaimoana" model, included some mix of coastline and population.]

 

 

In Re T

HC 66/94, HC Auckland, 2 June 1995. Tompkins J

This was an appeal against a decision declining an application for a Samoan child to be adopted by its grandparents (under restrictions in s11 Adoption Act 1955). The child had been born to a young unmarried mother who now lived with the grandparents and had since married a man other than the biological father. While an earlier decision MR v Department of Social Welfare (1986) 4 NZFLR 326 suggested that adoption by grandparents will not necessarily promote the interests of the child where a clear relationship with the mother still exists, decisions since then, most notably Re Adoption of A [1992] NZFLR 422 and Application for Adoption by RRM and RBM [1994] NZFLR 231, dealing with Maori children, showed that full regard should be had to the cultural attitudes of the family concerned. An adoption which might be considered inappropriate in a European setting may well promote the welfare and interests of the child in a Polynesian family.

 

 

Pineaha v Pepeko

CS 081 073 92. Family Court Waipukurau, 8 June 1995. Inglis J

The mother of a male child born in 1984, who had had that child adopted at birth by a paternal aunt, applied for suspension of child support liability. The mother had never played any part in the care and upbringing of the child and the adoption, which had never been formalised under the Adoption Act 1955, was in accordance with tikanga Maori or recognised Maori custom. When the adoptive aunt and her partner had applied for and been granted a domestic purposes benefit the Department of Social Welfare had approached the birth mother seeking a liable parent contribution, arguing that it had no discretion to do otherwise under the legislation.

Held: this was, by any reasonable standards, a situation which 'defied common sense'. The customary adoption had existed for nearly 11 years. Counsel for the mother argued that s25(1)(a)(ii) Child Support Act 1993 (parent ceases to be liable when child is "adopted"), when it refers to adoption, is not limited to adoptions under the Adoption Act 1955. Because Maori customary adoptions are clearly referred to in other legislation eg Maori Land Act 1993 (ss108 & 115), Parliament can hardly have been ignorant of them 2 years ago when it passed the Child Support Act.

It is a necessity to acknowledge the cultural strength of adoptions according to tikanga Maori. The omission of a direct reference to the 1955 Act in s25 "could only have been deliberate and was intended to enable customary Maori adoptions to be respected and recognised." Accordingly, the applicant ceased to be liable for child support when the child was adopted in accordance with custom. It would be sensible however for Maori who prefer custom and wish to remove any argument, to arrange a 're-adoption' under the 1955 Act.

[ed: the Crown is appealing this decision]

 

 

Falkner & Ors v Gisborne District Council & Anor

AP 1/95, HC Gisborne, 26 July 1995. Barker J

A group of homeowners, concerned that the local authority would no longer under the district plan protect their beachfront properties from erosion, argued that, despite the Resource Management Act 1991, a common law rule continued in existence requiring the Crown to preserve the realm from inroads of the sea, and allowing the homeowners to take action to protect their properties from the sea. The High Court determined that, despite savings provisions in the RMA (s23), where pre-existing common law rights were inconsistent with the scheme of the Act, those rights would no longer be applicable. The Act was not a vindication of personal property rights but concerned the sustainable management of resources, therefore there was nothing in the scheme of the Act to suggest that common law rights could not be infringed quite the reverse. The court suggested a compensatory scheme be enacted for the loss to be suffered by the homeowners by the change in the district plan.

[ed: this decision is noted because if indicates the potential impact of the RMA and similar legislation on rights which might be claimed under the doctrine of aboriginal title to the ownership, management and use of resources.]

 

 

Mataka Station Ltd v Far North District Council & Anor

A69/95, Planning Tribunal, 20 July 1995. Bollard J, Dr AH Hackett Mr IG McIntyre

An appeal against conditions of a resource consent granted by the council for a papakainga housing scheme in the Bay of Islands. The scheme was for 25 dwellings on a 172.77 hectare coastal block of Maori freehold land managed as a s438 trust (now an ahu whenua trust see s354 & s215 Te Ture Whenua Maori 1993). The land was ancestral land which had been in the ownership of the applicants' families since pre-European times and was held in multiple ownership by descendants of the original tupuna (ancestor). There was a marae and urupa on the block. The appellant's main concern was that the location of some dwellings on an area facing the sea would detract from the visual quality of the coastal environment, contrary to statements in various national, regional and district plans and the RMA itself. It was argued that some dwellings should be located in a central valley away from the coast.

Held: it was agreed by all parties that the block was suitable for a papakainga development. The district plan provided that marae and urupa were a permitted activity, and papakainga housing a discretionary activity within the coastal zone 1A designation covering the land. The district plan provided for 11 coastal zones. Zone 1A applied to sensitive parts of the coastal environment where conservation oriented polices were to be pursued and some managed change was allowed. Papakainga housing in the zone, when permitted, was to be limited to 25 houses per site with a density of 1 unit per 2 hectares of site area. No dwelling in the zone could be closer than 40 metres from the mean high water mark. Earthworks undertaken in the zone for dwellings were also subject to limits. A papakainga development plan was to be forwarded to the council prior to the commencement of any work.

The provisions of other relevant planning instruments were examined, namely, the proposed Regional Policy Statement, the NZ Coastal Policy Statement and the proposed Regional Coastal Plan, which designated the area as a "Marine 2 (Conservation) Management Area". The tribunal noted a legal opinion that, because different owners would have stronger ancestral links with some parts of the block than with others, it was appropriate that the location of housing sites on the block should promote whanaungatanga links of owners with their own particular piece of land or turangawaewae.

After evaluating these documents and the RMA (Part II and s104(1) in particular), the tribunal made an interim ruling allowing the scheme to proceed, bearing in the mind the need to ensure that the character of the coastal environment was maintained while allowing the applicants to locate on those dwelling sites as near as possible to areas with which they retained special links based on ancestral connections. Tentative conditions to be imposed included:

 that a surveyor locate each proposed dwelling site more exactly than on current plans;

 that dwellings be of single or split level construction only;

 electric power and telecommunications services be visually non-intrusive and underground as far as possible;

 that water storage and other accessory buildings for each dwelling be restricted in area;

 that all buildings be painted in naturally recessive colours to blend with the landscape;

 application be made to the Maori Land Court to define accessways across the block, and to set aside a foreshore area as a Maori reservation for esplanade-scenic purposes;

 conditions as to the quality and width of roadways over the block;

 that before building consents issued, a landscape plan be submitted to the council, and occupiers enter an agreement with the council to maintain the landscape in accordance with the plan, including an undertaking not to fell trees or scrub to increase views from the dwelling, and to implement the landscaping works applying to the dwelling within 12 months of occupying the dwelling;

 the trustees have overall responsibility to implement the landscape plan within an agreed period;

 an arrangement be made for fencing to be erected to restrict stock movement on the block;

 a time period be set within which existing unauthorised structures, including derelict vehicles, be removed from the block.

Parties were to reapply for final orders when the survey work to better locate the proposed dwellings and preparation of landscape plans had been completed.

[ed: the case is a good example of the many planning rules papakainga schemes may be subject to under the RMA regime, and the numerous conditions which may be imposed before schemes proceed.]

 

General

Waikato-Tainui Raupatu Claims Settlement Bill 1995

No 104-1

When enacted, this bill would make the necessary legislative changes to put into effect the Deed of Settlement of 22 May 1995 between Waikato-Tainui and the Crown (see Maori LR May 1995). The Deed of Settlement contained undertakings by the Crown to transfer particular Crown owned properties in the Waikato-Tainui claim area to a land holding trust established by the claimants. Much of this Bill is concerned with the undertaking that, wherever possible, land should be the recompense for the land that was confiscated. It does this by providing that all residual Crown lands in the claim area be potentially available for transfer to the land holding trust. Accordingly, the Bill provides mechanisms for:

 the transfer of Crown lands to the land holding trust;

 having titles to all residual Crown properties in the claim area marked with memorials noting that the land may be required to be offered for purchase to the land holding trust in certain circumstances;

 requiring Crown bodies to give the land holding trust the first right of refusal over any residual Crown land which they seek to sell;

 providing for the Crown to compulsorily acquire residual Crown land from Crown bodies to further the settlement;

 providing for properties to be vested in Pootatau Te Wherowhero (Te Rapa and Hopuhopu land being the first) as directed by the land holding trust.

Because the settlement seeks to finally settle Tainui claims in the claim area, the Bill also contains provisions:

 to cancel resumptive memorials from all state owned enterprise properties in the claim area;

 to remove any requirements under the Crown Forest Assets Act 1989 that Crown forest lands in the claim area be considered for return to Maori, except for Maramarua and Onewhero forests, which are to be returned to the claimants (the return of Onewhero is subject however to a suitable arrangement with the counter-claiming Hauraki Maori Trust Board being worked out first );

 removing the jurisdiction of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 to consider further the Waikato-Tainui claims finalised by the Deed of Settlement, or consider the settlement or benefits under it.

The Bill also makes incidental amendments to:

 Transit NZ Act 1989 - providing that projects affecting land registered in the name of Pootatau Te Wherowhero may not proceed unless the land holding trustee has first been consulted;

 Conservation Act 1987 - providing for the appointment of the Maori Queen and her successors to the conservation board covering the claim area;

 Resource Management Act 1991 - providing that resource consents may not be granted conditional on a financial contribution comprising or including land registered in the name of Pootatau Te Wherowhero;

 Crown Minerals Act 1991 - requiring the consent of the land holding trustee before any exploration activities can be carried out on land registered in the name of Pootatau Te Wherowhero, or land regarded as waahi tapu by the trustee;

 Maori Trust Boards Act 1955 - providing for the eventual dissolution of the Tainui Maori Trust Board when the settlement is in place, and cancellation of the annuity to that Board.

 

 

Trial by Peers? The Composition of New Zealand Juries

July 1995. Policy and Research Division. Department of Justice

This is an interesting study of apparent racial bias at work in NZ courts. Historically, Maori were excluded from sitting on juries until 1962 (except in Maori-Maori matters). Moana Jackson's paper The Maori and the Criminal Justice System: A New Perspective - He Whaipaanga Hou (1988) alleged that a monocultural bias existed in jury composition because of the way jury lists were assembled from the electoral rolls and the way challenges were made in court. This report investigated those allegations.

With regard to compilation of the jury list, the report found that in comparison with the population as a whole Maori were under-represented because of the relative youthfulness of the Maori population (ie fewer eligible to serve), the smaller proportion of Maori living near urban areas where jury trials are held (jury lists draw on people within 30 km of the courthouse) and the higher rate of Maori non- registration on electoral rolls. Other factors thought to be involved were jury summonses being sent by post to a highly mobile population, and disqualification through previous convictions (higher rates of Maori conviction). Maori women were also under represented in the jury pool. Research showed that there would be little change by increasing the size of districts from which juries are drawn to take account of the rural dwelling bias in the Maori population.

A survey of challenges in court showed that although defence counsel were twice as likely to challenge jurors as the prosecution, prosecution counsel were twice as likely to challenge Maori as non-Maori in the High Court, and 3 times as likely in the District Court, meaning that close to every second Maori male was challenged in the District Court. Maori males were overall the most challenged group. To explore this bias, a qualitative survey of judges, lawyers and court staff was undertaken. Evidence of previous convictions (police regularly provide printouts from the Wanganui computer to counsel), and the impression that Maori males would be more lenient on the accused, particularly where the accused is Maori, emerged as important factors. This bore out suggestions from US research that black jurors are less likely to convict than white ones and that the prosecution are more likely to challenge a person of the same minority group as the defendant. Other factors included perceptions of whanau or kinship links with the accused, demeanour, socio-economic bias, and client instructions. A counter-bias was also noted, where counsel did not want to give the rest of the jury the impression that they were selecting solely by race.

Despite these problems, there was little support from judges, lawyers and court staff either to reduce the number of challenges, or to provide guidelines for prosecution challenges. The authors recommend that consideration be given to the current number and use of challenges and whether they lead to a properly representative jury, a trial by one's peers.

[ed: It is interesting to see that the same problems which plagued the carrying out of the Maori electoral option, the low number on the electoral roll and the inefficiency of postal communication, also have an impact on the involvement of Maori in the justice system.]

 

 

Treaty Issues: The Unfinished Business. Proceedings of a conference held in Wellington, February 1995

VUWLR vol 25 no 2 July 1995

This volume of the Victoria University Law Review is dedicated to Treaty issues. Highlights include: MH Durie "Proceedings of a Hui held at Huirangi Marae, Turangi" (p109) concerns the hui called by Sir Hepi Te Heuheu to discuss the government Treaty settlement proposals released in December 1994. The paper notes the need to develop a constitutional framework in which the Treaty achieved certainty.

Sir Kenneth Keith "The Roles of the Tribunal, the Courts and the Legislature" (p129) reviewed recent applications of the Treaty in NZ law. Reflecting on the place of the Treaty in the NZ constitution in the future he said we should be wary of terms like sovereign and independent, "In the present world, made even smaller by technology and many other human and natural forces, no state is fully sovereign in its external relations, and leaving aside a handful of absolute dictatorships no politician or government or parliament has real internal sovereignty. What we are seeing is the dispersal of power from so-called 'sovereign states' in at least three directions - to the international community, to the private sector, and to public bodies and communities within the State." He suggested the possibilities for enforcing Maori aspirations included; a measure of self determination, the power of veto, rights placed as a constraint on or made relevant to the exercise of public power, Maori rights to be recognised as equal under Article 3. "The variety of those actual and possible arrangements indicates that the oft stated proposition that the law must apply equally to all at all times is too simple. We need to have a more subtle, but still principled, approach to the recognition and allocation of power. ...The diversity can relate to the deciders and their processes as well as to the substantive rules and principles."

Robert Te Kotahi Mahuta "Tainui: A Case Study of Direct Negotiation" (p157) discussed the history of negotiations with Tainui and the recent settlement negotiations.

Sir Tipene O Regan "A Ngai Tahu Perspective on Some Treaty Questions" (p178) contains characteristically pithy comments on current Treaty issues, including the view that iwi are the appropriate body to settle matters with in preference to hapu or pan Maori organisations. "[A] hapu, like the subsets of which it is composed, the 'whanau', is really an extremely dynamic concept. It is in a process of continual evolution and decay. ... If I want to disassociate myself from my immediate relations in some manner, all I have to do is go to the [cemetery] headstone, pluck down a name, establish the whakapapa to that name, and announce myself as 'Ngati Mea' or 'Ngati Mea Iti' for the occasion. Then I trot along to the Maori Land Court and make a section 30 application and before long the Maori radio is dripping with my tearful struggle to assert my identity. ... In practice as well as in tikanga and legal terms, there exists a tribal overright. ... the Iwi, the tribe, is a group around which you can effectively erect a whakapapa fence which matches the rohe fence."

Tania Rangiheuea "The Role of Maori Women in Treaty Negotiations and Settlements" (p195) concludes that to date, women have been on the outside looking in, with decisions being made by a Maori "boys club".

Whaimutu Dewes "Fisheries - A Case Study of an Outcome" (p219) comments on progress with allocation by the Fisheries Commission. He notes that customary fisheries issues are a mess and are underresourced.

Rt Hon Sir Geoffrey Palmer "Where to From Here?" (p241) said that "the idea that sovereignty should be given to Maori at a time when the notions of sovereignty are collapsing all over the world seems to me to be ludicrous. Once upon a time we thought the NZ Government was sovereign. We hardly think that now. Far from being the indivisible omnipresent concept that Hobbes made it in Leviathan, sovereignty is more like a piece of chewing gum. It can be stretched and pulled in many directions to do almost anything. Sovereignty is not a word that is useful and ought to be banished from political debate. The notion that sovereignty for Maori comes from the Treaty of Waitangi is highly controversial and requires reading one provision of the Treaty up and another down."

In a final "Comment" Moana Jackson (p245) said that he knows of no "fiercely independent group of people in the world .. who would voluntarily give away their sovereign authority" and the "untruth" that the Treaty achieved such a thing should be dropped. He is concerned that the Treaty is losing its political reality and being drowned in the rhetoric of the law, and quoted a Canadian indigenous lawyer reflecting on the concerns of the majority culture: "... I say to indigenous people, tell your stories of difference to break away from where they wish us to be. Because where they wish us to be is somewhere between being dominated and apparently equal, somewhere between laughter and tears."