New Zealand has an integrated but differentiated system of tertiary education, and within this, it is the universities that have a long tradition of research and research-informed teaching. The Tertiary Education Strategy emphasizes the role of faculty as researchers, and the need for internships and research of value to employers; in practice it supports a conventional model of students as research apprentices. Universities do not have offices dedicated to undergraduate research, service learning or community engagement to encourage student engagement in research projects shaped by undergraduates rather than their teachers. Nonetheless, good examples of student-driven practices are identified in a range of disciplines, including the humanities, engineering, ecology and geography. Examples are given at assignment, class and curriculum levels. An important component of these in New Zealand is an awareness of and some competency with respect to Māori culture, given the requirement in the national Education Act that institutions acknowledge the principles of the Treaty of Waitangi, which is the country’s foundational constitutional document.

The modern state of New Zealand was founded on the signing of the Treaty of Waitangi between the British Crown and indigenous Maori tribes. New Zealand’s partly uncodified, partly unwritten constitution is thus structured around questions of indigenous rights and the treaty relationship between the Maori and the Crown. This chapter examines how and why the Treaty and indigenous rights play a fundamental role in New Zealand’s constitutional system, and it uses the example of New Zealand to challenge conventional understandings as to what counts as a “constitution.”

The chapter will include a brief overview of the historiography of the New Zealand Wars, as well as the devastating impact of the Musket Wars on Maori society and developments in Maori warfare in the first decades of the nineteenth century. The issues at the heart of the conflict: Maori desire to retain control of land, the concept of rangatiratanga (chiefly autonomy) and the European hunger for land and control will be set out. The chapter will outline the course of the New Zealand Wars from the Northern War of 1845–46 until the final campaigns against Te Kooti in 1869–72. It will also outline the organization, capabilities, and size of the various forces involved in the wars. Particular attention will be paid to questions relating to the use of technology and Maori and British tactics. Topics to be covered will include the Maori use of entrenchment and firearms, the effectiveness of British artillery, the logistics problems faced by the British forces and the employment of Kupapa (Maori who fought with the British and colonial forces). One of the pivotal battles on the wars, the Battle of Rangiriri in November 1863, will be the subject of more detailed analysis.

In 1842-43 native title became an important matter in its own right and the Treaty of Waitangi regained the significance it had lost since its signing, largely as a result of a highly contingent series of events, none of which has been expected by the principal British players. In what amounted to a growing chain of signification that has previously gone unremarked by historians, several British parties, in the context of a fierce dispute between the New Zealand Company on the one hand and the imperial and colonial governments on the other in regard to an agreement they had struck earlier, formulated interpretations of what was happening or should happen that made the treaty of Waitangi important again. It is similarly evident that the way in which a range of British parties treated native rights in land in New Zealand owed a great deal to the political contestation between them. It is also apparent that the precise significance the Treaty of Waitangi came to have at this time differed according to the particular circumstances of the colony’s northern and southern districts. In fact, there would be no consensus about the treaty’s significance for some time to come.

The winter and spring of 1844–45 saw debate about native title in New Zealand reach a zenith in Britain. In a fierce parliamentary clash, the Treaty of Waitangi became the reference point in discussions of native title. This was not a consequence of the meanings or the importance attributed to the Treaty at the time it was made in 1840 but a result of the claims that had been made about it since 1842–43. In fact, the Treaty’s rise to prominence was the result of a struggle over the meaning of native title. The continuing attack by the New Zealand Company and allies, such as Lord Howick, saw the government increasingly arguing that the Treaty had to be upheld because it had acquired the nature of a solemn contract, and the honour and good faith of the British Crown and the nation were at stake. At the same time, the way that principal political players in Britain represented the natives’ military power varied enormously according to political circumstances and need, which draws into question the conventional wisdom that the British government respected the New Zealanders and their rights because of the simple fact of their might.

The significance of the treaty made at Waitangi in 1840 has consistently been exaggerated by historians. All the British players involved in making it were preoccupied with the momentary diplomatic task of persuading the chiefs to cede sovereignty to the British Crown. The inclusion in the agreement of a clause confirming the natives in the possession of their lands did not spring from the British government’s instructions but from the influence of local rather than metropolitan actors and forces. Moreover, with one exception, there is no contemporary evidence that any parties attached the significance to the first clause of its second article that was attributed to it later. What is more, the British government eventually claimed possession of the larger part of New Zealand on the very same basis as it had assumed possession of New South Wales in 1788, namely the doctrine of discovery. The way in which critical matters relating to land title were treated at the imperial centre was fundamentally a function of political power and could readily change according to circumstances. The government bowed to the pressure that a group of adventurers, the New Zealand Company, was able to exert in parliament and the press.

Hobson’s successor as Governor, Robert FitzRoy found New Zealand in crisis but had few resources to address it and adopted rash measures that appeared to abandon the means by which the British government hoped to acquire ownership of vast swathes of land. A major political struggle erupted in London between the New Zealand Company and the Colonial Office with the former spinning a powerful tale that its troubles were primarily the result of the natives’ rights of property in land being defined wrongly. More specifically, the Company’s directors and Lord Howick blamed the Treaty of Waitangi for the way that the natives’ rights in land had been defined. It mattered not a jot that the stories told about its significance involved more fiction than fact. For its part, the Colonial Office insisted that the Treaty had to be upheld in light of what had happened in the past, the facts on the ground in New Zealand and the undertakings the Crown had given the natives. In the colony, abstract legal principles and philosophical ideas similarly played little role in the way the key British players approached native title, especially in comparison to a mixture of moral, political and strategic considerations.

Amokura Kawharu’s Chapter 11 discusses the “Treaty of Waitangi” exception that is now included in each of New Zealand’s FTAs. The exception is intended to enable the New Zealand government to enact measures in order to give effect to its obligations to Māori under the Treaty of Waitangi, even if the measures are inconsistent with obligations assumed by New Zealand under the FTAs. It has also served as a precedent for other states looking to include a General Exception to protect Indigenous rights. Professor Kawharu examines the circumstances surrounding the adoption and continued use of the exception in New Zealand’s FTA practice as well as the adequacy of the exception in the context of the increasing depth and scale of New Zealand’s participation in FTAs (and, in particular, New Zealand’s expanding commitments with respect to the protection of foreign investment) and proposes options for Māori to consider as means for addressing the issues.

The most significant legal aspects are the legal changes in the major countries involved in repatriation requests and those in European countries, including the UK, that deal with international requests for return. The chapter also looks at how countries such as the US that have a legal framework for national returns deal with international requests and how these processes differ from those internal repatriations. The chapter also examines the more general laws pertaining to human remains, from burial laws to laws dealing with very recent remains concerning donations of bodies to science and medicine, licensing of the display of recent human remains and methods of acquisition by museums of the recently dead.

In Chapter 4 I consider the limited recognition of traditional, cultural water rights in Australian law. In the Australian model, property rights in water and water markets accompany government oversight and planning. Australian water law has undergone drastic reforms since the early 1990s, yet little has been done to provide indigenous peoples with the right to use water on their lands for commercial and productive purposes. Native title rights to water have been interpreted narrowly by the courts according to traditional and cultural uses, and are usually accounted for as in-stream cultural and conservation values in water catchments, distinguishing them from the consumptive rights held by other users. Yet indigenous Australians continue to make up the most disadvantaged sector of Australian society and Australian governments have committed to reducing that disadvantage, including by supporting the productive use of indigenous lands. The Australian experience demonstrates the difficulties inherent in recognising historical indigenous rights to land and resources, as indigenous water practices change over time and conflict with other uses. The study highlights the need for an allocative model, enabling both the reservation of water for indigenous allocation and the redistribution of water rights in fully allocated catchments.

In Chapter 5 I consider water rights for Maori in Aotearoa New Zealand. Pursuant to a settlement between Whanganui Iwi and the Crown, made in 2017, the Whanganui River was recognised as ‘Te Awa Tupua’ (‘an indivisible and living whole, incorporating all its physical and meta-physical elements’), declaring the River to be a ‘legal person’. The arrangement accords certain guardianship and governance rights, but not property rights, to the Maori people that traditionally owned the River. However, Maori continue to agitate at a national level, both politically and before courts and tribunals, for the right to ‘own’ their water resources, amid cautious government plans for water law reform. The New Zealand study raises interesting questions about the nature of water in law; as a private right to be held and allocated, or a public interest incapable of ownership. Maori are seeking both recognition of their distinctive water relationships and influence and control over water governance and a substantive share of the consumptive pool of water for any purpose including economic development. The study of Maori rights to water in this chapter demonstrates the variability of indigenous water demands, and a need for multifaceted responses to indigenous water exclusion.