LAWFUL VS LEGAL

The New Zealand government’s claim to power and authority over whanau hapu and iwi is based on a legal system that European colonisers brought with them and have tried ever since to impose on us.  This might arguably be legal, but it is definitely not lawful. 

For example, a ‘lawful’ marriage can be performed under tikanga Maori. But the government insists we must also have a marriage license compliant with its Marriage Act before it will recognise our marriages as ‘legal’. 

In this example, ‘lawful’ speaks of our freedom to be married, while ‘legal’ speaks of our being bound to be married under the government’s law.  

Without our free, prior and informed consent to be so bound, such a law is, in itself, not lawful. 

But the most disturbing aspect of lawmaking in this country is the fact that none of the so-called laws coming out of parliament are based on a constitutional commitment to uphold and protect our sovereign rights. In fact, it is quite the opposite.  

Witness the ongoing attempts by government to steal our taku taimoana and deny hapu sovereignty.  More critically, witness their attempts to take New Zealand into the secretive TPPA, which is nothing less than a cession of the entire country’s sovereignty masquerading as a free-trade deal.  Tena te mahi kino o nga taurekareka tuturu.

This constitutional void further calls into question, not only the lawfulness of government claims to sovereign power and authority in New Zealand, but also the righteousness of the laws made by that government.

For decades, resistance to the government’s unlawful claims of sovereignty over us has largely been led by relatively powerless individuals, whanau and hapu.  But Chris Finlayson’s recent attempt to rewrite Te Ture Whenua Māori (Māori Land) Act had the unintended consequence of broadening the resistance base when hui held around the country to discuss Te Ture Whenua Maori instead produced a number of resolutions that upheld Maori sovereignty.  And last month those resolutions were given the powerful backing of every iwi in the country.

Fundamental to that iwi backing is the principle of international law which defines how one people may lawfully acquire sovereignty over another people. 

Simply put, even a brief look at international law confirms that, because we never ceded our sovereignty and were not militarily conquered, our hapu and iwi remain sovereign entities.  It also confirms that we can still lawfully enact and live under our own tikanga, and we cannot be legally bound by governments to do otherwise. 

However, the racism and greed for power that underpins government lawmaking in New Zealand are not yet spent forces.  But, even if they do remain a permanent stain on the social fabric, the tikanga and aroha underpinning our responses to them are also not spent forces.  

Witness our ongoing activism on every front.  More critically, witness the work of our ahi kaa roa to keep and care for our whenua, our whanau and our manuhiri.  Tena te mahi o nga rangatira tuturu.

Although we still have a long way to go, we have already come far in our journey towards a genuinely post-colonial era.  Part of that journey is the development of rules that we all can live with; a written constitution based on a genuine commitment to protect and uphold our sovereign rights and responsibilities. 

Since 2010 the Constitutional Iwi Leadership Group have been doing exactly that.  After more than 200 hui over several years in marae and meeting places mai Te Hapua i te raki ki Waihopai i te tonga, they will soon complete their report.  

Included will be the draft of a constitution for Aotearoa based on He Wakaputanga o te Rangatiratanga o Nu Tireni, Te Tiriti o Waitangi, and tikanga.  

Over the next twelve months, the report and draft constitution will be taken back to the whanau hapu and iwi.  There won’t be as many hui as there were between 2010 and 2013, and the process may not take as long.  But at the end of it, the draft constitution should accurately reflect te korero me te whakaaro o tatou katoa.

Knowing that the laws coming out of te whare miere are not lawful is important to our post-colonial future.  But knowing that real power and authority are granted by the Gods is even more important. Because ultimately, no constitutional system of laws, including tikanga, can be lawful or enduring if it is contrary to their will.

For now, our task is to bridge the gap between the current constitutional void which does not uphold or protect our individual and collective sovereignty; and to do so in a way that is lawful rather than merely legal.