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As an indigenous person, therefore, it should not be surprising that the mention of human rights immediately puts me on my guard. The widely held assumption that the concept of human rights is ‘self-evident, universal, culture- free and gender neutral’2 merely increases my suspicion. Simply asserting the universality of a concept does not make it so.
I realise that not all proponents of human rights subscribe to such universalism, some arguing instead that ‘allowances must be made for different cultural norms and that a standard approach cannot be taken to rights’.3 However, even this cultural relativism smacks of arrogance: in the context of Aotearoa, for instance, it might suggest that the concept of human rights ought to ‘make allowance’ for tikanga Māori. In other words, the Western concept of human rights is regarded as the norm, while tikanga becomes the ‘other’, something for which allowances might reasonably be made.
Such an approach is the very antithesis of what was encapsulated in te Tiriti o Waitangi. But before considering that document further, the point should first be made that, from a Māori perspective at least, it is not the logical starting point for this discussion. It may well be the source of any rights that the Crown and therefore Pākehā have in this land, which doubtless explains their tendency to look back no further than 1840. For Māori, however, te Tiriti is not the source of our rights but rather a reaffirmation of rights that stem from the fact that we are tangata whenua, the people of the land.
Our connection with Aotearoa stretches back through the last millennium, throughout which time tikanga Māori operated as the first law of the land. Tikanga Māori is based upon a set of underlying principles that have withstood the test of time: principles such as whakapapa, whanaungatanga, mana, manaakitanga, aroha, wairua and utu. While the practice of tikanga was adapted over time to meet new contexts and needs, it nevertheless remained true to those foundational concepts, which some have called ‘conceptual regulators’,4 others ‘kaupapa’.5 Durie has pointed out that allowing for the adaptation of practice while protecting the fundamental norms underpinning it ‘enabled change while maintaining cultural integrity’.6
Moana Jackson has observed that the efficacy of this system was ensured through the exercise of rangatiratanga, which was ‘a total political authority’.7 Importantly, both the Declaration of Independence and te Tiriti o Waitangi reaffirmed that authority.