Magna Carta, human rights, and the Treaty of Waitangi todaySeptember 3rd, 2015
2015 marked both the 800th anniversary of the Magna Carta and the 175th anniversary of the Treaty of Waitangi.
In this talk Dr Carwyn Jones looks at how the originally very local document known as the Magna Carta went on to influence subsequent legislation in many countries including international agreements such as the Universal Declaration of Human Rights. He also looks at how the Treaty of Waitangi is linked to those international agreements and the fundamental notion of equality before law that is the most enduring legacy of the Magna Carta.
This talk was given as part of the series on conflict that was jointly presented by the National Library of New Zealand and Victoria University of Wellington during 2015.
Dr Carwyn Jones is a Senior Lecturer at Te Kura Tātai Ture Faculty of Law at Victoria University. He is of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. His primary research interests relate to the Treaty of Waitangi and indigenous legal traditions.
Carwyn Jones. Photo by Mark Beatty.
Carwyn is not an employee of the National Library, and as such his ideas and opinions are his own.
Stream the talk (54 min):
Magna Carta is celebrated as a pillar of liberty and democracy. It has been invoked as a powerful symbol of justice by inspirational leaders such as Nelson Mandela and Mahatma Gandhi. It has been lauded by lawyers, judges, and politicians as a fundamental constitutional document, and perhaps never more so than in this 800th anniversary year. 800 years is nothing to sniff at and we should celebrate the quite phenomenal endurance of Magna Carta and the values for which it stands.
But not everyone has been so excited about it. I was in Washington DC just a few weeks ago and I had made a visit to the National Archives. After the Declaration of Independence, the Constitution, and the Bill of Rights, probably the next most prominently displayed document there was a copy of the 1297 restatement of Magna Carta. There were hordes of teenagers swarming around as part of various school outings and there was a crowd of people clustered around the Magna Carta itself. I heard a teacher instruct her students to make sure that they had all had a look at the Great Charter. One young woman, after waiting some time to get into a position where she could see it, turned to her mate and said, completely unimpressed, “Oh great. It’s a document”.
And, amidst all the celebrations and veneration, I thought that was a good reminder to keep some perspective about Magna Carta and what it means to us today. Because the importance of Magna Carta is not found in a document sitting in a glass case, nor is it to be found in a single moment of time in 1215 when a group of moneyed and privileged elites forced some temporary concessions from another moneyed and privileged elite. That is not to say that Magna Carta is unimportant, but simply that, as a former Dean of Harvard Law School, Erwin Griswold famously noted “Magna Carta is not primarily significant for what it was but rather for what it was made to be”. (1) The importance of Magna Carta comes from the life that we give to its principles. So this evening, I’d like to consider how we do that in Aotearoa in the 21st century, in particular, how the principles of Magna Carta inform our understanding of human rights and what that means for the recognition of rights under the Treaty of Waitangi.
1215 and all that
In order to appreciate the relevance of Magna Carta today, it is helpful to take a look at what those privileged elites I referred to earlier were concerned about and what they did about their concerns.
Although Magna Carta is famed for placing constraints on the power of the English monarchs, it is really born out of resentment and frustration at the actions of one particular monarch – King John. It is perhaps an understatement to say that King John is not remembered fondly by history. After his death, one 13th century chronicler noted “Foul as it is, hell itself is made fouler by the presence of King John.” (2) Often we find that our historical villains are not as villainous as they are remembered or that there are more sympathetic aspects of their character or that things were not as black and white as the history books tell us. But there do not seem to be throngs of revisionist historians sticking up for poor old King John. However, his tyrannical behaviour does appear to have been the catalyst for somewhat re-evaluating the way medieval kingship operated. Having an all-powerful sovereign is one thing when the sovereign is a successful military leader, can protect the lives and properties of his subjects and is not an undue burden on the wealth of the nobles. But it is quite another when the sovereign is a bit of an all round no-hoper and generally unpleasant to boot.
So, in 1215, after having lost control of territories in France and after continually demanding money from the barons for his largely unsuccessful campaigns, many of the barons openly opposed the king and some eventually occupied London. In an attempt to avoid an all-out civil war, Archbishop Stephen Langton and others began to work on a negotiated settlement and a meeting was arranged at Runnymede, where the king was persuaded to affix his seal to what became known as Magna Carta.
In some senses then, Magna Carta can be seen as a peace treaty and indeed a number of the later articles are about practical issues of peace-making. For example, the king was to return all hostages, remove all foreign knights from England (a number specifically named, including the then Sheriff of Nottingham – to name-check another well-known historical baddie) – the king was required to make restorations to those who had been unjustly deprived of property, and so forth.
Magna Carta also included a lot of stuff that was quite specific to the issues and concerns of the time. (3) There were clauses that protected the ancient liberties and customs of cities, boroughs, towns and ports. This reflected the thriving commercial activity of 13th century cities and towns and the mercantile structures and systems of urban administration that had developed. The facilitation of commerce and trade was also the driving force behind a clause which standardized weights and measures for grain, wine, beer, and cloth. Now, this probably doesn’t immediately seem like a fundamental constitutional principle, but, interestingly, the Constitution of the United States also makes explicit mention of the legislative authority to standardise weights and measures. There were clauses that aimed to reform the application of forest law and the king’s hunting privileges – the royal forest had increased to about one third of the entire kingdom by this time. These clauses later formed the basis of the 1217 Charter of the Forest. And, Magna Carta also required the removal of fish weirs from rivers, which inhibited the established right of free navigation on English rivers and also potentially affected trade in cities like London which depended on the waterways for commercial transport.
Alongside these more specific and in some senses quite localised clauses, Magna Carta also dealt with some pretty major ideas of more universal application particularly aimed at limiting the extent of kingly authority and establishing the important principle that nobody is above the law. The idea that the king’s powers ought not to be exercised in a manner that was oppressive or arbitrary was not completely new in 1215. The Coronation Charter of Henry I issued on Henry’s accession to the throne in 1100 AD addressed abuses of power and declared that at least the barons would have some protection of their lands and moneys. But certainly, Magna Carta is distinctive and novel in both its scope and detail. Importantly, I think, Magna Carta begins its substantive clauses with the words “First, that we [‘we’ being King John] have granted to God…”. So, here is an indication that this charter is not simply going to be an undertaking made by the king to be applied as he sees fit without reference to a higher authority. And the original 1215 document provided for enforcement as follows:
Since we [again, that is King John] have granted all these things for God, for the better order of the kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security: The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter. (4)
So, first let’s note that this is the king, in effect, making a compact with the almighty. And also, providing for an elected committee to enforce the rights set out, although it is important to note that reference to this committee was not included in later restatements of Magna Carta through the 13th century.
One central way in which the barons sought to limit the king’s powers was to explicitly enforce long-standing feudal rights and obligations. Under the feudal system, it is true that the king was entitled to payments from his ‘tenants-in-chief’ and other payments such as those owed by the barons in place of military service but King John had exploited these rights to excess and more than 20 of the 63 clauses in the 1215 Magna Carta were directed at defining and limiting the king’s feudal rights.
But the most well-known and enduring clauses of Magna Carta relate to justice and the rule of law. Probably the most famous clause is that which is still on the statute books in New Zealand, (5) expressed in the words of the 1297 restatement as follows:
NO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right. (6)
There is a lot contained in that single paragraph and indeed much more has been extrapolated from its words.
As with the provisions relating to feudal rights and obligations, the clauses dealing with issues of justice and the rule of law are, at least in one sense, more about holding the king to previously established standards rather than completely revolutionizing the justice system. Henry I had earlier established judicial courts of a kind that would provide the basis for the development of the English justice system. But, as in other matters, King John had abused and exploited the justice system, using it as a tool of oppression and a means of extracting money from barons and landholders. The response in Magna Carta was to provide clearer definitions and limitations of the king’s authority and more firmly assert the authority of law and legal process.
Perhaps most importantly the clauses relating to justice and due process set out a principle of equality before the law. They make clear that every person is entitled to justice and to have his or her legal rights recognised and that the law will apply equally to all without exception.
Influence on human rights
This principle of equality before the law can be seen reflected in virtually all of the instruments we would see as being foundational to our understanding of human rights today – the Bill of Rights of 1689 in Britain, the Declaration of the Rights of Man and the Citizen of 1789 in France, the US Bill of Rights of 1791, and, more recently, the Universal Declaration of Human Rights adopted by the United Nations in 1948. Eleanor Roosevelt was Chair of the UN Human Rights Commission at that time and was instrumental in the drafting of the Universal Declaration. When submitting the Universal Declaration to the UN General Assembly for adoption, she famously invoked Magna Carta saying:
We stand today at the threshold of a great event both in the life of the United Nations and in the life of mankind. This declaration may well become the international Magna Carta for all men everywhere. (7)
The adoption of the Universal Declaration of Human Rights was a milestone in the development of human rights and the Declaration frames our conception of human rights today. One of the most significant aspects of the Declaration is reflected in its name – it is a Universal Declaration of Human Rights – it sets out rights that are held by everyone, everywhere. The preamble states that the Declaration reflects the
recognition of the inherent dignity and... equal and inalienable rights of all members of the human family... and through that recognition provide the foundation of freedom, justice and peace in the world
The universality of human rights is again emphasized in the first substantive article of the Declaration, which states:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
The Declaration then goes on to set out the content of these universal rights including personal rights to life, freedom, security, justice; civil and political rights such as freedom of thought, religion, conscience, opinion, participation in democratic processes, etc.; economic, social, and cultural rights such as rights to work, to equal wages, protection of trade unions, and a right to an adequate standard of living.
The Universal Declaration of Human Rights then leads on to key international human rights treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights (to name just the two most central human rights treaties), and it also led to further articulation and recognition of rights as they apply to particular groups or people in particular circumstances. For example, the Declaration of the Rights of the Child, or the Declaration on the Rights of Indigenous Peoples, which I will talk about in a little more detail in a moment. Note that once rights have been recognised in a declaration, often there is then a move to give effect to those rights through the implementation of binding treaties or conventions.
All of these international human rights instruments are based on the central principles of equality and non-discrimination. The international human rights system is based on the premise that these rights are universal and place constraints on the power of states. These fundamental principles can be seen to have at least their seeds in Magna Carta.
Here in Aotearoa, this framework is also reflected in the New Zealand Bill of Rights Act, which, as the long title of the Act notes, is intended “to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights”. Much of the text of the Bill of Rights Act is drawn from the Covenant on Civil and Political Rights and so New Zealand human rights law also taps into the idea that fundamental rights place some constraints on even sovereign authority.
The Treaty of Waitangi in the context of Magna Carta and human rights
So, we can see that there is quite a direct link between some of the key principles expressed in Magna Carta and the current system of international and domestic human rights instruments today. But what about the Treaty of Waitangi? What does Magna Carta have to say about the Treaty of Waitangi and its application to New Zealand public life in the 21st century?
Well, for a start, there is an increasingly explicit connection between the Treaty of Waitangi and the international human rights system. In particular, in 2007, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples.
The Declaration on the Rights of Indigenous Peoples has 46 articles that describe internationally recognised human rights standards as they apply to Indigenous Peoples. The rights set out in this Declaration cover significant matters and themes such as
- the right to identity
- the recognition of collective rights
- the key human rights principles of non discrimination and equality
- the right to self-determination
- the way in which indigenous peoples ought to be consulted on matters that affect them and that is in accordance with the principle of free, prior and informed consent
- the recognition of rights to lands and resources (including remedy breaches)
One way of looking at this is that the Declaration on the Rights of Indigenous Peoples, with its 46 articles, fleshes out some of the detail that is left undefined in the guarantees of the comparatively brief Treaty of Waitangi. Indeed, after New Zealand indicated its qualified support for the UN Declaration on the Rights of Indigenous Peoples, former Waitangi Tribunal Chairperson, Eddie Taihakurei Durie, stated:
We have completed the trilogy. The 1835 Declaration acknowledged Indigenous self- determination. The 1840 Treaty upheld it within the structures of a State. This Declaration now confirms it and says how it should be applied. As rights go, that’s a big step. It fills the gaps in the Treaty of Waitangi. (8)
More recently, the Waitangi Tribunal in its report Whaia te Mana Motuhake, on the reform of the Māori Community Development Act, examined the link between the principles of the Treaty of Waitangi and the UN Declaration on the Rights of Indigenous Peoples. The Tribunal described the connection as follows:
Our jurisdiction is to assess Crown actions against the principles of the Treaty. It is not our role to make findings on whether the Crown has acted inconsistently with UNDRIP.
However, both the claimants and the Crown accept that the UNDRIP articles are a circumstance we can take into account in assessing the Crown’s actions. UNDRIP is therefore relevant to the manner in which the principles of the Treaty of Waitangi should be observed by Crown officials.
This is particularly the case where the UNDRIP articles provide specific guidance as to how the Crown should be interacting with Māori or recognising their interests. (9)
The Tribunal then went on to match up specific, recognised Treaty principles with key articles of the Declaration.
The principle of kawanatanga, which speaks to the Crown’s rights and responsibilities of government, and which the Tribunal described in its report as the Crown having “a role to play in collaboratively developing legislation or administrative arrangements for Māori and for providing reasonable support for Māori within their sphere of authority”. Further, the Tribunal said, “a responsible Crown must ensure that in the exercise of Māori rights, the human rights and fundamental freedoms of all New Zealanders and others should be respected.” (10)
The Tribunal then pointed to articles in the UN Declaration that support this perspective on the role of government in relation to Indigenous Peoples’ rights. For example, article 19 states that Indigenous peoples ought to be consulted, and their free, prior, and informed consent sought in relation to legislative measures that affect them. Articles 38 and 39 of the UN Declaration note that states ought to take measures to achieve the objectives of the Declaration and should provide financial and technical assistance to Indigenous Peoples in doing so. Furthermore, the Tribunal notes that the limitations on self-determination contained in article 46 of the Declaration recognise and preserve the role and responsibilities of government, consistent with the Treaty principle of kawanatanga.
The Tribunal also sees articles in the UN Declaration on the Rights of Indigenous Peoples as being supportive of the principle of rangatiratanga. (11) There are articles in the declaration which explicitly recognise Indigenous Peoples’ right to self-determination in both a general political sense (12) but also specifically in the context of internal self-government; (13) distinct political, legal, economic, social and cultural institutions; (14) rights to determine group membership and identity; (15) and the right to maintain and develop distinctive customs and traditions, including in relation to juridical systems. (16) The Tribunal describes the connection with rangatiratanga as follows:
All these articles are consistent with the notion that Māori should have authority and local self-government over their own spheres of influence and affairs... these articles reflect a consistent scheme in UNDRIP that recognises that indigenous peoples should not have outcomes imposed upon them by Governments. The principle of rangatiratanga operates in practice with the same effect. (17)
If kawanatanga and tino rangatiratanga are the two big concepts at the heart of what the Treaty of Waitangi has to say about the exercise of public power, it is now an established part of the public discourse to speak of the relationship between those two spheres of authority as the principle of partnership. This principle has been central to the articulation and application of rights under the Treaty of Waitangi in the Waitangi Tribunal as well as in the ordinary courts. In its Whaia te Mana motuhake report, the Tribunal situates the principle of partnership alongside provisions of the UN Declaration which recognise Indigenous Peoples’ right to participate in decision-making in accordance with their own processes and institutions. In particular, the requirement that the Treaty “partners must make every effort to reach agreement through a spirit of compromise”, appears to reflect the principle of free, prior and informed consent that is woven throughout the UN Declaration.
The Tribunal applies the same approach to the Treaty principles of active protection and informed decision making, equity and equal treatment, and the right to development. Analysing each Treaty principle in the context of the UN Declaration on the Rights of Indigenous Peoples.
So, one reason why Magna Carta is relevant to our thinking about the Treaty then is because Magna Carta stands as a powerful symbol for the principles of justice and equality that underpin modern human rights and, with the increasing recognition of Indigenous Peoples rights at international law, the Treaty is becoming increasingly interconnected with the framework of international human rights. This is illustrated by the Waitangi Tribunal’s articulation of Treaty principles alongside articles of the UN Declaration on the Rights of Indigenous Peoples. And although it provides quite a novel focus on collective rights, the Declaration on the Rights of Indigenous Peoples is itself based upon key established human rights principles of equality and non-discrimination and at least the seeds of those principles are present in Magna Carta.
But there is another reason why Magna Carta is relevant to discussions about the Treaty of Waitangi. It is this: the whole premise of Magna Carta is that the king’s authority is subject to some constraints; that nobody and no institution is above the law; and, the clauses relating to standards of justice make it clear that everyone is entitled to have their legal rights recognised. The acceptance of these basic principles is absolutely central to the process of Treaty claims and settlement and our wider reconciliation project. For example, I do not think that it would be possible to conceive of a body such as the Waitangi Tribunal, where claims are always and only made against the Crown, if there was not a general acceptance that the powers of the state are limited by the human rights of its citizens. Similarly, would the government even be entertaining the possibility of engaging in Treaty settlement negotiations if it was acceptable for the Crown to arbitrarily deprive its citizens of property rights. That is not seen as acceptable and so some effort must be made to recognise Māori property rights and provide some form of remedy for historical breaches of those (and other) rights. Now, it is certainly arguable that Treaty settlements are not sufficient in terms of the value of redress provided compared to what was lost, or that they do not provide effective or appropriate recognition of Māori rights. But the fact that that argument could proceed from the presumption that the Crown is required to make good on its obligations to protect Māori rights says something, I would say, about the way in which, over the course of the last 800 years the core principles that Magna Carta symbolizes have been internalized in our constitutional thinking.
Making Magna Carta’s principles live
So, if we are going to properly celebrate the endurance of the Great Charter, I would suggest that we need to make its principles live, to demonstrate their relevance to New Zealand public life in the 21st century, to ensure that our laws protect the rights of all of us. This should not, indeed must not be an exercise in reliving the past (either from 1215 or from 1840), but must build upon our history subsequent to those dates, because, although we live in very different times and changed circumstances, the core principles that I have spoken of remain highly relevant. As Justice Baragwanath said in a 2008 speech about Magna Carta and the New Zealand constitution:
Given modern weapons and means of communication, Magna Carta’s principles of the rule of law and legality and their relevance on the international plain are even more important now than in 1215. So too are the elements of the Treaty of Waitangi, with its recognition again of the rule of law but with the modern elements of an equal place for all and acknowledgement of the virtues of difference. (18)
As we have traversed this evening, Magna Carta stands as a powerful symbol for the principles of justice and equality that underpin modern human rights, including human rights protected in the guarantees of the Treaty of Waitangi. The challenge of Magna Carta is to ensure that our society adheres to those principles, no matter what issues we confront. If the Crown is not compelled to recognise statutory rights of first refusal held by iwi, is that consistent with equality before the law? If our security services are indiscriminate in the way they collect data about electronic communications, are we free from arbitrary exercise of state power? If we truly want to celebrate Magna Carta, these are the kinds of questions we should continually be asking. Because the value of Magna Carta comes not from Runnymede in 1215 but from how we choose to give life to its principles here and now and into the future.
1. Erwin Griswold ‘Introduction’ in Samuel E. Thorne et al., The Great charter: four essays on Magna carta and the history of our liberty, New York, Pantheon Books, 1965. ^
2. Matthew Paris, c1230. ^
4. Clause 61. ^
5. See Schedule 1, Imperial Laws Application Act 1988. ^
6. (1297) 25 Edw 1 (Magna Carta), c 29. ^
7. Eleanor Roosevelt, Statement to the United Nations' General Assembly on the Universal Declaration of Human Rights, 9 December 1948. ^
8. Eddie Taihakurei Durie “Address on the Declaration” statement given May 2010, Parliament Buildings. ^
9. Waitangi Tribunal, Whaia Te Mana Motuhake, (Pre-publication version, 2014), p 55. ^
10. Ibid, p 57. ^
11. Ibid, p 57-58. ^
12. Article 3, United Nations Declaration on the Rights of Indigenous Peoples. ^
13. Ibid, Article 4. ^
14. Ibid, Article 5. ^
15. Ibid, Article 33. ^
16. Ibid, Article 34. ^
17. Waitangi Tribunal, Whaia Te Mana Motuhake, (Pre-publication version, 2014), p 58. ^
18. Justice David Baragwanath, ‘Magna Carta and the New Zealand Constitution’, Address to English Speaking Union, 29 June 2008. ^