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13 Waikato L. Rev. 41 (2005)
The Rule of Law, Biculturalism and Multiculturalism

handle is hein.journals/waik13 and id is 45 raw text is: THE RULE OF LAW, BICULTURALISM AND MULTICULTURALISM BY HON JUSTICE E T DuRIE* I do not regard the policies for bicultural or multicultural development as mutually exclusive. I think they address different things. Biculturalism is about the relationship between the state's founding cultures, where there is more than one. Multiculturalism is about the acceptance of cultural difference generally. Both policies may be seen to point to the need for a new legal framework to define the relationship between the state and its constituent peoples. I suggest that the framework is already under construction although the design is not yet clear. For thoughts about the design I think one could do no better than to read Will Kymlicka but at some risk I will mix in perspectives of my own.' Mostly I seek a perspective that considers the development of the rule of law in light of social changes since Dicey's lectures were published in 1885. As a phrase, the rule of law captures some of our most treasured visions of democracy, equality and liberty. Government must not be capricious but must act according to law. All are equal before the law and the law is the protector of individual liberties. However in Dicey's world, where these thoughts grew, there were only two actors to be concerned about, the individual and the state. The social order was so homogenous that there was no need to consider particular cultural groups. The sociological concept of nation, as a people of common history and tradition, and the political concept of the state, as the government of a large, defined territory, were either fused in fact, or were fused as an ideal. That was probably not the case for most of the world at that time. It is certainly not the case for many states today. Bosnia and Rwanda, for example, have shown that peace requires that groups too should be accommodated within the state. Moreover, the recognition of only the state and the individual was rarely possible in the New World, where invariably, more than one culture was involved in the formation of the state. From the 1830s the Native Americans were provided for in the United States as domestic, dependent nations. The description of them as nations was undoubtedly correct, sociologically, although the term is now politically inconvenient because of the confusing conception of the nation state. On the other hand, Canada developed concepts of inherent rights of autonomy coupled with fiduciary obligations. Australia turned to the doctrine of aboriginal rights. New Zealand grafted on a concept of partnership through the development of a treaty jurisprudence. In the New World the founding cultures of the modern state were not necessarily limited to two, like the indigenous and * Justice of the High Court; Commissioner of the Law Commission. 1 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995). I have also considered A Bar- tley, and P Spoonley, 'Constructing a Workable Multiculturalism in a Bicultural Society' in M Belgrave, M Kawharu, and D V Williams, (eds) Waitangi Revisited: Perspectives on the Treat of Waitangi (2005); S Elias, 'Sovereignty in the 21st Century: Another Spin on the Merry-Go-Round' (2003) 14 Public Law Review 148 and S C Idleman, 'Mul- ticulturalism and the Future of Tribal Sovereignty' (2004) 35 Colum Human Rights Law Rev 589.

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