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Jonathan Harlen
Southern Cross University

Following the 2015 Waitangi Tribunal report, He Whakaputanga me Te Tiriti, which concluded that Maori did not cede sovereignty to Great Britain upon signing the Treaty of Waitangi in 1840,  new constitutional narratives are being explored in Aoteoroa/New Zealand which challenge the doctrine of exclusive parliamentary sovereignty maintained by the Crown, and which also to re-imagine the nation’s founding law  for genuinely plural spaces to be developed, in which both Maori and non-Maori can exercise their legal autonomy. This paper looks to the first decade following the signing of the Treaty of Waitangi for inspiration in addressing this issue. It focuses on the neglected constitutional doctrine of the Ngapuhi tohunga Papahurihia, and on the theory and practice of his little-known “Te Nakahi” movement, whose adherents included the rebel chief Hone Heke during his uprising against British rule in 1845-1846. It asks for the first time whether, and to what extent, the pluralist doctrine preached by Papahurihia at this time can serve as a analogue for the common law, in its search for the sources necessary to re-imagine a shared legal order. The paper combines an orthodox legal/historical methodology with the use of historical fiction to re-imagine an encounter between Papahurihia and Archdeacon Henry Williams, a leading British settler, during Heke’s rebellion in November 1845.

Jonathan has had a varied career as an author, solicitor advocate, and academic. Since his first novel, The Greening of Copeland Park, was published in 1990, he has published more than thirty works of fiction for adults, young adults and children. He has been short-listed for a number of Australian awards for children’s and young adult literature, and is the winner of the Family Award and the Talking Book Award. His books have been published in nine countries. In 2019 he commenced a Phd at Southern Cross University which combines the use of historical fiction with more conventional research methodologies to explore alternative pluralist legal paradigms in the country of his birth, Aoteoroa/New Zealand. His thesis is entitled The Law of the Serpent: Te Nakahi and the Re-Storying of Sovereignty in Aoteoroa/New  Zealand. He currently lectures in law at Southern Cross. More information on his writing can be found  at https://en.wikipedia.org/wiki/Jonathan_Harlen.

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