[1] L Cannold, 'Core subjects to bust post-colonial cringe', The Australian, 9 June 2004, p. 35.
[2] S Macintyre & A Clark, The History Wars, Melbourne University Publishing, Carlton, 2003.
[3] Kruger v Commonwealth (1997) 190 CLR 1, p. 18.
[4] The explorer, Tasman, assumed that he had seen part of a great South land lying east of Terra del Fuego and known to the Dutch as "Staten Landt". Later, when it transpired that there was no such continent, Dutch map-makers substituted "Zeelandia Nova" for Tasman's discovery (after Zeeland province in the Netherlands). It became known in English as "New Zealand": A Salmond, Two Worlds: first meetings between Maori and Europeans 1642-1772, Viking, Auckland, 1991, pp. 24 & 437. "Aotearoa" was the name applied by some Maori to part or all of the North Island in the nineteenth century. It became the common Maori language name for the whole country during the twentieth century (including in the Maori version of the national anthem now commonly in use, and in numerous Maori and Government publications). The origins of this usage have been traced to a School Bulletin in 1913: M. King, Penguin History of New Zealand, Penguin, Wellington, 2003, p. 69. As part of the acceptance of bicultural development it is now common (as evidenced in the footnotes of this article) to refer to the country as Aotearoa New Zealand or New Zealand/Aotearoa.
[5] All the reports of the Waitangi Tribunal (whether previously published or not) are now accessible at http://www.waitangi-tribunal.govt.nz/reports/
[6] Government publications include: Te Puni Kokiri/Ministry of Maori Development, He Tirohanga o Kawa ki te Tiriti o Waitangi (A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal [Te Puni Kokiri, Guide], Wellington, 2001, p. 14; http://www.archives.govt.nz/docs/pdfs/Constitution_English_web.pdf 'Paths To Nationhood - Nga Ara Ki Te Whenuatanga'. Scholarly contributions include B V Harris, 'The Constitutional Future of New Zealand' [2004] NZ Law Review 269; P A Joseph, Constitutional and Administrative Law in New Zealand (2nd ed), Brooker's, Wellington, 2001, pp. 42-86; F M Brookfield, Waitangi and Indigenous Rights, Auckland University Press, Auckland, 1999; M McDowell & D Webb, The New Zealand Legal System (2nd ed), Butterworths, Wellington, 1998, pp. 189-233; P G McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi, Oxford University Press, Auckland, 1991.
[7] G W R Palmer, Constitutional Conversations, Victoria University Press, Wellington, 2002, p. 22.
[8] R Cooke, 'Introduction', (1990) 14 NZULR 1, pp. 1-8; S Elias, 'The Treaty of Waitangi and Separation of Powers in New Zealand' in B D Gray & R B McClintock (eds), Courts and Policy: Checking the Balance, Brooker's, Wellington, 1995, pp 206-230. [See also articles by D V Williams, K J Keith A Frame, and A Mikaere in the special sesquicentennial issue on the Treaty of Waitangi and constitutional issues: (1990) 14 NZULR, pp. 9-101.]
[9] Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188, p. 210 (Chilwell J) (HC).
[10] New Zealand Maori Council v Attorney-General [1994 1 NZLR 513, p 516 (Lord Woolf) (PC).
[11] Court of Appeal of New Zealand, "Media Release: Seabed Case", 19 June 2003.
[12] Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) [Ngati Apa].
[13] For less sensational comments and material relating to the actual issues, see T. Bennion, M. Birdling & R. Paton, Making Sense of the Foreshore and Seabed, Wellington, The Maori Law Review, 2004; T Bennion, 'Lands Under the Sea: Foreshore and Seabed' in M Belgrave, M Kawharu & D Williams (eds), Waitangi Revisited: Perspectives on the Treaty of Waitangi [Waitangi Revisited], Oxford University Press, Melbourne, 2004, pp. 233-47.
[14] D Brash, 'Nationhood', Orewa Rotary Club, 27 January 2004 [Brash, 'Nationhood'] http://www.national.org.nz/Article.aspx?ArticleID=1614 <3 December 2004>
[15] See David Williams, Crown Policy Affecting Maori Knowledge Systems and Cultural Practices, Waitangi Tribunal Publication, Wellington, 2001 [Williams, Crown Policy].
[16] See E Hobsbawm, 'Introduction: Inventing Traditions' in E Hobsbawm & T Ranger (eds), The Invention of Tradition, Cambridge University Press, Cambridge, 1983, pp. 1-14; J G A Pocock, 'Time Institutions and Action; An Essay on Traditions and Their Understanding' in Politics, Language and Time. Essays on Political Thought and History, Methuen, London, 1972, pp. 233-46.
[17] R Cooke, 'Introduction' (1990) 14 NZULR 1, p. 8.
[18] See Stuart C. Scott, The Travesty of Waitangi - Towards Anarchy, Campbell Press, Christchurch, 1995.
[19] McHugh in Histories, Power, and Loss, fn. 46, p. 248.
[20] Andrew Sharp, Justice and the Maori: Maori Claims in New Zealand Political Argument in the 1980s, Oxford University Press, Auckland, 1990; Andrew Sharp, 'History and sovereignty: a case of juridical history in New Zealand/Aotearoa' in M Peters (ed), Cultural politics and the university in Aotearoa/New Zealand, Dunmore Press, Palmerston North, 1997, pp. 158-81.
[21] W H Oliver, 'The Future Behind Us: The Waitangi Tribunal's Retrospective Utopia' in A Sharp & P McHugh (eds), Histories, Power and Loss, Bridget Williams Books, Wellington, 2001, pp. 13, 26-7 [Histories, Power and Loss]; W H Oliver, Looking for the Phoenix: A Memoir, Bridget Williams Books, Wellington, 2002, pp.154-70.
[22] Giselle Byrnes, The Waitangi Tribunal and New Zealand History, Oxford University Press, Melbourne, 2004.
[23] Philip Temple, A Sort of Conscience: The Wakefields, Auckland University Press, Auckland, 2002, pp. 2-3.
[24] E Durie, 'Constitutionalising Maori' in Grant Huscroft & Paul Rishworth (eds), Litigating rights: perspectives from domestic and international law, Hart, Oxford, 2002, pp. 241-64; Joe Williams, 'The Maori Land Court - A Separate Legal System?', NZ Centre for Public Law, Occasional Paper No 4, 2001.
[25] P G McHugh, 'Law, History and the Treaty of Waitangi' (1997) 31 NZ Journal of History 38; R P Boast, 'Lawyers, historians, ethics and the judicial process' (1998) 28 Victoria University of Wellington Law Review 87.
[26] J G A Pocock, 'The treaty between histories' in Histories, Power and Loss, pp. 75-95.
[27] J Hayward & N R Wheen (eds), The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi, Bridget Williams Books, 2004.
[28] Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, Department of Justice, Wellington, 1988, p. ix [Waitangi Tribunal, Muriwhenua Fishing]. See also I.H. Kawharu (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi, Oxford University Press, Auckland, 1989, p. vii.
[29] Regrettably, the First Schedule of the 1975 Act contained many errors and omissions in the Maori text of the Treaty. Even the word 'wenua' [land] in the land guarantee was accidentally omitted! This was eventually remedied by the inclusion of the authentic text, based on a facsimile of the original, in the Schedule of the Treaty of Waitangi (Amendment) Act 1985. [For an idea of what the rat-eaten and water-stained actual original document looks like, see Histories, Power and Loss, p. 74.]
[30] Waitangi Tribunal, Muriwhenua Fishing, p. 20 & appendix 3.4.1, pp. 281-3 (Interim Report to Minister of Maori Affairs on State-Owned Enterprises Bill, 8.12.86).
[31] Treaty of Waitangi (Amendment) Act 1985.
[32] The first report of the tribunal under the new jurisdiction was Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim, Brooker & Friend, Wellington, 1987. That hearing had commenced shortly prior to the 1985 Amendment Act and then was adjourned so that the Tribunal could complete its report under the enhanced jurisdiction.
[33] New Zealand Maori Council v. Attorney-General [1987] 1 NZLR 641 (CA) [SOE lands]; New Zealand Maori Council v. Attorney-General [1994] 1 NZLR 513 (PC) [Broadcasting assets]; Joseph, pp. 68-72, 75-7.
[34] Te Puni Kokiri, Guide, pp. 111, 129-38. [Another useful list of relevant statutes: Joseph, pp.74-5.]
[35] The 1985 Amendment Act enlarged the Tribunal's membership from three to seven, of whom four were to be Maori. A further Amendment Act in 1988 enlarged the membership to 16 and stipulated in section 4 (2A): 'In considering the suitability of persons for appointment to the Tribunal, the Minister of Maori Affairs- (a)Shall have regard to the partnership between the 2 parties to the Treaty; and (b)Shall have regard not only to a person's personal attributes but also to a person's knowledge of and experience in the different aspects of matters likely to come before the Tribunal.' In practice, 'the partnership between the 2 parties to the Treaty' means that about half of the Tribunal members are Maori and about half of each hearing panel are Maori.
[36] Waitangi Tribunal, Muriwhenua Fishing, pp. 3-4; see also 'Kawenata tuku i te mana me te mauri o te marae, me te whakahoki (Covenant yielding the authority of the marae to the Tribunal, and its return to the people), pp. 299-300.
[37] Williams, Crown Policy, pp.1-45.
[38] David V Williams, 'Te Kooti tango whenua' : The Native Land Court 1864-1909, Huia, Wellington, 1999.
[39] James Belich, Paradise Reforged: A History of the New Zealanders, From the 1880s to the Year 2000, Allen Lane/Penguin, Auckland, 2001, Part I.
[40] MS-papers-0148-028A, Maori Purposes Fund Board 1945-50, Alexander Turnbull Library, Wellington, fol. 1; Williams, Crown Policy, p. 145.
[41] Ibid, fol. 4; Williams, Crown Policy, p. 146.
[42] Waitangi Tribunal, The Taranaki Report Kaupapa Tuatahi, GP Publications, Wellington, 1996, p. 312.
[43] T. Turia, 'Speech to NZ Psychological Society Conference 2000, Waikato University, Hamilton', 29 August 2000, pp. 3-4. See http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=8466
[44] Brash, 'Nationhood', p. 3.
[45] J Metge, 'Ropeworks - He Taura Whiri', Waitangi Rua Rau Tau (Waitangi Bicentenary) lecture, February 2004, p. 10. See http://www.firstfound.org/waitangiruarautau2004joanmetge.htm <1 February 2005>
[46] Brash, 'Nationhood', p. 13.
[47] Brash, 'Nationhood', p. 12.
[48] The tenor of the speech was not remarkably different to those of his predecessor as Leader of the Opposition: B. English, 'One Standard of Citizenship-One Rule for All', New Zealand Institute of Directors, The Wellington Club, Wellington, 19 November 2002; B. English, 'Unity and Development are better than Division and Dependency', Channel View Lounge, Takapuna, Auckland, 22 January 2003. The impact of the Brash speech at Orewa in 2004 was of an entirely different order, however.
[49] T Mallard, 'First results of review of targeted programmes', 16 December 2004, http://www.beehive.govt.nz/PrintDocument.cfm?DocumentID=21856 <1 February 2005>
[50] http://www.alta2005.waikato.ac.nz/ <1 February 2005>
[51] See Mason Durie, Te Mana, Te Kawanatanga: The Politics of Maori Self-Determination, Oxford University Press, Auckland, 1998; Aroha Harris, Hikoi: Forty Years Of Maori Protest, Huia Publishers, Wellington, 2004.
[52] See Harris, pp. 144-155 and http://www.converge.org.nz/pma/hkmedia.htm <2 February 2005>
[53] Attorney-General v. Ngati Apa [2003] 3 NZLR 643 (CA); Department of the Prime Minister and Cabinet, The foreshore and seabed of New Zealand: Protecting Public Access and Customary Rights: Government Proposals for Consultation, Wellington, 2003; Te Ope Mana a Tai 'Discussion Framework on Customary Rights to the Foreshore and Seabed', August 2003 - see http://www.teope.co.nz <2 February 2005>; Indigenous Research Institute, Te Takutai Moana: Economics, Politics & Colonisation, vol 5 (2nd ed), Auckland, 2003; Waitangi Tribunal, Report on the Crown's Foreshore and Seabed Policy, Legislation Direct, Wellington, 2004.
[54] See C James (ed), Building the Constitution, Institute of Policy Studies, Wellington, 2000.
[55] A Blank, M Henare & H Williams (eds), He Korero Mo Waitangi, 1984, Te Runanga o Waitangi, Ngaruawahia, 1985, p. 2.
[56] M H Durie, 'Proceedings of a Hui held at Hirangi Marae, Turangi' in G McLay (ed), Treaty Settlements: The Unfinished Business, NZ Institute of Advanced Legal Studies, Wellington, 1995, pp. 19-27.
[57] T Turia, 'Opening of Parliament, 1 February 2005, Response to the Prime Minister's Statement to Parliament': http://www.maoriparty.com/speech_Tariana_parliament_opening_01Feb05.htm <2 February 2005>
[58] A Mikaere, 'The Treaty of Waitangi and Recognition of Tikanga Maori' in Waitangi Revisited, p. 334.
[59] For a useful collection of relevant Waitangi Tribunal statements, see P G McHugh, 'A history of Crown sovereignty in New Zealand' in Histories, Power and Loss, p. 202; fn 44 at p. 248.
[60] Education Act 1989, section 162(4)(a)(v).
[61] Williams, Crown Policy, pp. 64-100.
[62] J K Hunn, 'Report on Department of Maori Affairs with Statistical Supplement', 24 August 1960, [1961] Appendices to the Journal of the House of Representatives, G-10 [Hunn Report].
[63] Hunn Report, pp. 77-8 & Appendix F, pp. 173-7.
[64] Hunn Report, pp.14-15.
[65] Hunn Report, p.15.
[66] Hunn Report, p. 16.
[67] Hunn Report, p. 16.
[68] Report of Committee of Inquiry into Laws Affecting Maori Land and Powers of the Maori Land Court, Wellington, Government Printer, 1965 - see A Ward, National Overview, vol II (Waitangi Tribunal Rangahaua Whanui Series), GP Publications, Wellington, 1997, p. 436.
[69] Williams, Crown Policy, pp. 140-1.
[70] N Kirk, 5 July 1974, [1974] 391 NZ Parliamentary Debates, p. 2691.
[71] Williams, Crown Policy, p. 104.
[72] P G McHugh, 'A History of Crown Sovereignty in New Zealand' in Histories, Power and Loss, pp.199-203; P G McHugh, 'Tales of constitutional origin and Crown sovereignty in New Zealand', (2002) 52 University of Toronto Law Journal 69, pp. 86-91.
[73] Belich, Part 5 & p. 477.
[74] See note 72 above, and also P G McHugh, 'What a difference a Treaty makes - the pathway of aboriginal rights jurisprudence in New Zealand public law', (2004) 15 Public Law Review 87.
[75] J Kelsey, Rolling Back the State, Bridget Williams Books, Wellington, 1993, pp.279-85. See also J Kelsey, 'From Flag-poles to Pine Trees. Tino Rangatiratanga and Treaty Policy Today' in P Spoonley & others (eds), Nga Patai. Ethnic Relations and Racism in Aotearoa/New Zealand, Dunmore Press, Palmerston North, 1996; J Kelsey,'Maori, Te Tiriti, and Globalisation: The Invisible Hand of the Colonial State' in Waitangi Revisited, pp. 81-102.
[76] M Kirby, 'Deep Lying Rights - A Constitutional Conversation Continues', The Robin Cooke Lecture 2004, Victoria University of Wellington, 25 November 2004; Zaoui v Attorney-General, (not yet reported) SCCIV13/2004, Supreme Court, 25 November 2004.
[77] J H Baker, An Introduction to English History (4th ed), London, Butterworths, 2002, p. 13.
[78] Baker, p. 1.
[79] Arthur L Goodhart, "Law of the Land", University Press of Virginia/Magna Carta Commission, Charlottesville, 1966, p. 68.
[80] Goodhart, pp. 44-5
[81] J G A Pocock, The Ancient Constitution and the Feudal Law, (Reissue), Cambridge University Press, Cambridge, 1987 [Pocock, Ancient Constitution].
[82] John Phillip Reid, 'Law and History', (1993-1994) 27 Loyola of Los Angeles Law Review 193, p. 197 [Reid, 'Law and History'].
[83] Pocock, Ancient Constitution, pp. 30-1.
[84] Pocock, Ancient Constitution, p. 43.
[85] Pocock, Ancient Constitution, pp. 18-19, 43.
[86] Janelle Greenberg, The Radical Face of the Ancient Constitution: St. Edward's "Laws" in Early Modern Political Thought, Cambridge University Press, Cambridge, 2001, p.9.
[87] Pocock, Ancient Constitution, pp. 40-1.
[88] Joseph Campbell (with Bill Moyers), The Power of Myth, Anchor Books (Doubleday), New York, 1991. See also Joseph Campbell, The Flight of the Wild Gander. Explorations in the Mythological Dimension. Selected Essays 1944-1968, New World Library, Novato, 2002.
[89] Reid, 'Law and History', p. 207.
[90] Imperial Laws Application Act 1988, section 3(1) & Schedule 1 (Constitutional Enactments). Also included in that schedule are the Statute of Westminster the First 1275, the Magna Carta 1297 and a number of due process statutes from the reign of Edward III in the fourteenth century.
[91] Constitution Act 1986, section 15(1).
[92] M Cullen, 24 May 2004, 150th Anniversary Sitting of Parliament, Address to Her Excellency the Governor-General. See http://www.clerk.parliament.govt.nz/hansard/Hansard.aspx [For a gentle riposte from an MP in the Government coalition, see M Robson, 'Sometimes it is best to be humble', Press Release: Progressive Party, 3 June 2004: 'Politicians are law-makers. If some among us are unhappy at individual judges' interpretations of any particular law then all that really means is that clearly the law wasn't very well written.'
[93] For her own words, see S Elias, 'Sovereignty in the 21st century: Another spin on the merry-go-round' (2003) 14 Public Law Review 148.
[94] Alan Ward, 'Historical Method and Waitangi Tribunal Claims' in Miles Fairburn & W H Oliver (eds), The Certainty of Doubt: Tributes to Peter Munz, Victoria University Press, Wellington, 1996, p. 152 (quoting Bernard Smith, The Death of the Artist as Hero. Essays in History and Culture, Oxford University Press, Melbourne, 1988).
[95] Te Maire Tau, 'Matauranga Maori as an epistemology' in Histories, Power and Loss, pp.61-73.
[96] Campbell (with Moyers), pp. 28-9, 38-9. See, on the other hand, a critique of myth in legal reasoning in S Beaulac, 'The Westphalian Model in Defining International Law: Challenging the Myth', (2004) 8 Australian Journal of Legal History 181.
[97] Thomas Berry, The Great Work. Our Way into the Future, Bell Tower, New York, 1999.
[98] Marina Warner, 'Magic and Transformation in Contemporary Literature and Culture', Sir Douglas Lectures 2004, University of Auckland: http://www.alumni.auckland.ac.nz/3136.html
[99] David V Williams, 'The Annexation of New Zealand to New South Wales in 1840: What of the Treaty of Waitangi?' (1985) 2 Australian Journal of Law and Society 41, p.47; 'The Foundation of Colonial Rule in New Zealand' (1988) 13 NZ Universities Law Review 54; 'The Use of Law in the Process of Colonization', PhD thesis, University of Dar es Salaam, Tanzania, 1985.
[100] F Fenton, The Laws of England: Compiled and Translated into the Maori Language, Leighton, Auckland, 1858, p. i [preface by the Governor, Browne] cited in Mikaere, Waitangi Visited, p. 334.
[101] F M Brookfield, Waitangi and Indigenous Rights: Revolution, Law and Legitimation, Auckland University Press, Auckland, 1999.
[102] New Zealand 1990, The Treaty of Waitangi: The symbol of our life together as a nation, Wellington, 1990, p. 14.
[103] New Zealand 1990, The Treaty of Waitangi, p. 16.
[104] Metge, p. 2.