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Interview with Dame Sian Elias

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"I would just like the young women of today to know how much we older women are looking to them with confidence, and with love."


Dame Sian Elias


Dame Sian Elias: Ah, I’m not sure about partnership, but I think the Treaty itself is — it has legal status, because it’s a Treaty, so it’s contained in the Treaty series. So it’s not a nothing at international law. The question, I think, you’re really asking is, what is it in domestic law? And I think the answer to that is, it’s not yet determined.

Is it a problem that the Treaty’s status in law is not determined?

Dame Sian Elias: It may not be. Constitutional documents are always indeterminate; they have to leave room for societies to grow. They’re all made with aspirations of their day, and they have to expand to fit the different society that evolves, so there’s nothing unusual about that.

But I do think the Treaty is constitutional, because it was constitutive of the new state that was formed in New Zealand.So exactly what status it has in domestic law has always been something that has been hotly disputed.

It’s quite interesting that the first Chief Justice of New Zealand, William Martin, thought that it did have effect in domestic law, and there were a number of decisions of the courts which did it treat as having effect in domestic law. But then we rather lost track of that for many years.

It’s even been called ‘a nullity’...

Dame Sian Elias: Yes. In 1862, I think it was, in a case called Wi Parata and the Bishop of Wellington. But the Privy Council thought that that decision was wrong. So even in the 19th Century there was debate about that.

Who takes responsibility for the Treaty?

Dame Sian Elias: Well, the Crown is the successor of the British Crown, and the Queen — Queen Victoria — was of course a party to the Treaty. So the Crown, the executive in New Zealand, if you like, is the inheritor of the obligations that the Queen took on in 1840.

So are Government and the Crown the same thing?

Dame Sian Elias:The government is — well, in our way of looking at it, which may be rather technical, but in our way of looking at it the Crown is really the executive. But in fact the Crown is a most unhelpful metaphor. As one great English legal historian said, 'The Crown lives in the Tower of London.'

But when I use ‘the Crown’ I’m really talking about the executive government. But that’s perhaps a technical use, and maybe people use ‘the Crown’ to mean the state, because that’s also possible. In which case, it would embrace all branches of government; legislative, executive and judicial.

Why don’t we have a constitution that embraces the Treaty?

Dame Sian Elias: Well, many people think we don’t have a constitution, but that is not correct, we do have a constitution. We have a common-law constitution, we have a constitution which is whatever is accepted to be authoritative in the state, and that evolves over time. Now we’re not alone in that, because the British constitution is similar.

And the British constitution too, has a very important Treaty as one of its constitutive elements; that’s the Act of Settlement. It’s actually quite interesting that James Busby, who was, of course, one of the people most connected with the Treaty and drawing it up, compared the Treaty of Waitangi to the Treaty of Settlement between Scotland and England; which is quite an interesting analogy, because I don’t think it would be accepted that even the parliament at Westminster could simply abolish the Treaty of Union by repealing the Act of Union.

And I think that’s quite a useful analogy, particularly for those who think that the Treaty could not have legal effect. I think it is a comparable historical constitution that we have.

If you look at He Whakaputanga, surely the terms used in that document explain the linguistic differences that have plagued the interpretation of the two versions of the Treaty?

Dame Sian Elias: Yes, well absolutely. I think the use of the word ‘mana’ in the Declaration of Independence makes it quite clear that mana was not ceded in the Treaty of Waitangi, and that the use of the word ‘kawanatanga’ was absolutely deliberate.

For myself, I’ve always thought the translation arguments to be a little bit of a dead end, in the sense that it can’t be disputed that the Treaty is actually the Māori text of the Treaty. So what really is important is what do we mean by kawanatanga? I think it can be translated as sovereignty, but I think it depends on what you mean by sovereignty.

Because again, the first Chief Justice of New Zealand said that the sovereignty that was ceded in the Treaty of Waitangi was subject to the obligations taken on by the Crown in Article 2. So it was a fettered sovereignty. Now so far, we haven’t explored whether that’s so in New Zealand law, but it remains there as a big question.

Did Māori really know what they were signing?

Dame Sian Elias: Well, I think that some of the suggestions that Māori were duped by the Treaty of Waitangi are not correct. I do think that it was debated up and down the country. There was a good understanding of what was hoped to be achieved. It was a very brave document, it was an attempt to set up a new world, really. It was an embracing of the modern.

And I think that’s a really good thing for our country, because it’s the way we started out, and I think it’s the line we have to hold to; that we’re not afraid of doing big things here, and that we were started in a spirit on optimism.

Have we lost our innocence and our sense of equality as a country?

Dame Sian Elias: Well, I’m not sure that we’ve ever been quite as pure as you’re suggesting. The people who first came to New Zealand, the settlers, they came here — well, the very early ones they came here really to pillage — I’m not sure about rape — but they were certainly here to exploit the resources that were here. So they were pretty rugged individualists, I think.

But it’s very interesting that whenever you have a frontier society, they soon develop a very strong sense of community, indeed they actually develop a strong sense of law; and that’s been demonstrated on frontiers all around the world, California. Some of the more lawless people in the world, once they put down roots, actually want to be civil, and want to set up the trappings — they want to have contracts that will be observed.

So I think there have been times in our history when we haven’t all pulled together, we have been much more individualistic. But I do think that being at the end of the earth [laughs] has meant that we’ve had to be self-reliant, we’ve had to borrow, we’ve had to think about what can be adapted for our purposes here, and we have had a strong sense of identity, which perhaps in a global community is less easy to hold on to. So I think that might be a challenge for us at the moment.

Is the Treaty unfinished business in a constitutional sense?

Dame Sian Elias: Well, I think the Treaty is unfinished business. It’s really only recently been rediscovered business for most Pākehā New Zealanders.

When I started off practising law, and I ended up — because being a woman it was rather difficult to get the sort of work that I thought that I would like to do, so I ended up doing all sorts of odd work that nobody else seemed to want to do, and one of them was working on Treaty claims and Treaty litigation.

So that was not that long ago in the scheme of things, in the mid or early 1980s, I suppose I started that. And at that time, even though it’d written a thesis on New Zealand constitutional law, I had never read the text of the Treaty; it had never been mentioned at Law School. When I asked for a show of hands at a legal gathering about who had read the Treaty, in about 1987 I think — maybe a bit earlier — not one hand went up.

So in some ways that’s extraordinary, and then when I — we’ve forgotten an awful lot of our history, and we’ve actually forgotten a lot of our own legal history, because when I did become involved in this work, and had to read some of the old cases in the courts of New Zealand and the law reports, of course the Treaty featured in a lot of the arguments, but it had been lost to view in New Zealand.

Probably the final nail in the coffin was the Privy Council decision in Hoani Te Heuheu Tukino’s case in 1942, and that really said that the Treaty had no effect in domestic law. So that was a bit of a full stop for quite a long period, as far as the law was concerned. But I think that that is now thought to be quite a suspect authority.

As the Treaty Settlements come to an end, people think that is the end of it for Māori. What do you say to that?

Dame Sian Elias: Well, I think the Treaty Settlement process has been very important. I think the Waitangi Tribunal, particularly the work it did in the early years when Eddie Dury was chairman of the Waitangi Tribunal, provided a bridge to understanding for New Zealanders about our very rich heritage, our rich legal heritage, and the terrible things that were done.

And it has been really important to face up to some of those mistakes. I think of cases like the very sad case about the bed of the Wanganui River, which trundled through the courts for years. It went twice to the Court of Appeal, last time in 1962, in which it was said that a claim for the river — the river being an ancestor of those people — the claim for the river couldn’t be made because too much land had been sold or acquired or taken on the banks of the river, and that the ownership of the river went with the land on the banks of the river.

Now that’s only recently been reconsidered in a case in the Supreme Court, and I think we have managed to explain why that case was a misstep. But in the meantime, the settlement processes have allowed that claim to be considered, and some of the arguments that were being made for recognition of the river itself, not as a possession, but as a thing itself in New Zealand law, have been picked up. So all of that’s really good.

I’ve never thought that the settlements, as such, were the end of the Treaty relationship, if that’s what you’re suggesting some people might be thinking; that’s not the case. And indeed in some respects, the emphasis on the settlement process may have deflected the Waitangi Tribunal in recent years from being able to get on with its original task, which Matiu Rata had seen as — that visionary — had been seen as advising the Crown on how best to face up to its Treaty responsibilities, in the expanding world; not looking back, but looking forward. And I think there is still a lot to be done in that connection.

We need to get a grasp on our history before we can go forward, don’t we?

Dame Sian Elias: Well, I’m not sure that it is so dark and brooding. I think it is — and I’m not an expert on this — but what reading I have done, I’m really impressed at how vibrant the debates were. And yes, there were battles, but behind those battles were big ideas, and they are incredibly rich ideas, which I would have thought all of us would want to know about.

Think about Te Kooti and Rua Kenana, and so on. People who brushed with the law, but always had huge respect for law and justice, and talked about those things; very deep thinking.

Studies are being done about the psychological effects of the loss of lands following the Treaty on Māori. This is not what the Treaty promised, right?

Dame Sian Elias: Oh well, we just react, really. We’re there to hold to the law. So social poverty issues, that’s right outside our experience. We deal with the outcomes in the courts, of course all the time, but... yes. No, it is a huge. I mean, things like that... one of the cases I was involved in was the — sorry, this is probably off point. Well, there was the fisheries claim where we stopped the quotaing of the fish species — we didn’t know that a lot of it had already happened.

But that was done because — and Matiu Rata was a plaintiff in that case, behind it, and I remember visiting him at Te Hapūa, right up the top, and in came one of his friends who was leaving to go to Auckland; leaving his home, because there was no employment there.

They used to have a bit of fencing, and bit of shearing, a bit of freezing working, a bit of forestry work, and fishing. But when the quota system came in, the part-time fishermen were excluded. Now I’m not saying that that was not a good policy; it may be a terrific policy in the national interest.

But I do think we have to do something about the fact that in Māori society you have such deep attachment to the tribal lands, and we can’t just uproot people and take them off into Auckland or Wellington or wherever; we have to create opportunities.

At the time of the signing of the Treaty, Māori would have understood their land rights much more clearly than Hobson and Busby did, surely?

Dame Sian Elias: I don’t know. I think the British actually knew quite a lot about Māori society. They’d been looking at it for quite a long time. I think they did understand quite well. But you say they didn’t have the same connection. No, of course they didn’t.

But they didn’t expect to, of course, those very early framers of the Treaty, didn’t expect to displace Māori society at all; they were looking to set up settlements around the coast, in quite small areas. They had no idea of how the tsunami of settlement would impact; they had no idea of taking over the government of the whole country, including Māori, when the Treaty was signed.

What happens now that our immigrant population grows faster than Māori and Pākehā?

Dame Sian Elias: Well, I’m a migrant, all of us are migrants. It would be nice to think that the rate of immigration into New Zealand will be at a pace will be at a pace that can absorb New Zealand values and appreciate what we have here. I’m not sure whether the current rate of immigration does permit that. I’m not sure — I really don’t know much about immigration, I’m afraid.

I don’t know whether we are making available to our immigrant communities some of the stories about New Zealand. If we’re not making them available in the schools, we’re probably not doing a good job of making them accessible to more recent arrivals. But I would have thought we should be starting in the schools. We should be teaching our history more in the schools.

In the light of the Suffrage Movement and the vote for women, could you speak about women’s rights today?

Dame Sian Elias: Well, to the Suffragettes getting the vote wasn’t the end of the process, and sometimes I think we’ve slumbered on their legacy a bit. They believed that the point of getting the vote was to change the world; to ensure that the values that they held would be absorbed by everybody.

I think that it’s been a long road for women, even with the advantage of the vote in New Zealand. I mean, sometimes I feel like a dinosaur when I think back on the experiences I had in the early 1970s trying to get a job in law. So I’ve lived through a lot of that, and we don’t have some of those grosser forms of discrimination, but we still have huge barriers for women.

If you look at the figures on salaries and so on, women keep lagging. We have this terrible position of domestic violence, which suggests that we haven’t really done very well, in terms of transforming attitudes to women in our society. So I think there’s a lot to be done.

Have women set their sights to low in NZ society?

Dame Sian Elias: And then the other thing is, I think the ambition has been too limited. It’s not just getting through the door; it’s not just making it to be Chief Justice of New Zealand or something like that. It’s about making sure that all women have these opportunities; not just wealthy women, well-educated women.

So I think our ambition has been too limited, and I do hope that the next generation picks that up, and works to fulfil the legacy of the Suffragettes.

What would you say to young women at high school today who are thinking about their future?

Dame Sian Elias: I wouldn’t like to give young women today any advice. I feel that elders really should not be trying to clog their aspirations and make suggestions, because it’s such a different world. I would just like the young women of today to know how much we older women are looking to them with confidence, and with love.

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