From the Sami (northern hemisphere) to the Maori (southern hemisphere): a comparison of treaty rights and how well they are upheld through specialised land courts and commissions of inquiry

Abstract

This dissertation provides an insight into the treaty rights of the Sami (Norway, Sweden, Finland and Russia) and Maori (Aotearoa/New Zealand), and how well these rights are upheld through specialised land courts and Commissions of inquiry. While the "Treaty of Waitangi" as a direct treaty between Maori and the British Crown is analysed, the "Lapp Codicil" as an indirect treaty between Denmark-Norway and Sweden-Finland is considered for the Sami. Land rights are the core concern of indigenous peoples worldwide. It also plays an important role in the treaty analysis. The treaty analysis is undertaken with the three main legal instruments for interpretation: wording, meaning and purpose. It determines to which extent both treaties can be interpreted in favour of Maori and Sami rights. After considering the content of the treaties, the focus shifts to their status in the colonial states' legal systems of today. Upholding treaty rights are inalienable in a democratic state. The existing specialised land courts and Commissions of inquiry as mechanisms in the states' legal systems reflect and point out the limits from the treaties. In contrast to the Nordic countries, New Zealand has the Maori Land Court and the Maori Appellate Court. However, the existence of these specialised courts for land rights claims do not change the fact that the treaty rights are not protected through them. On the other hand, the Commissions of inquiry of New Zealand (the Waitangi Tribunal) and the Nordic countries (the Norwegian and Swedish Sami Rights Commissions) are mechanisms that uphold the treaty rights. The analysis of these Commissions reveals, thus, that New Zealand incorporated its Treaty more effectively. On reflection, upholding Maori and Sami treaty rights can still be improved in the states' legal systems. One must not forget that an important factor to upheld treaty rights is the society: Knowledge leads to understanding, and understanding leads to assistance. Public support leads generally to pressure on the state. It comes back to policy when upholding treaty rights is the aim.