Dear Rodney
I suppose things that you don’t understand can be scary in a
way. There is certainly a lot of both
fear and misunderstanding expressed in your opinions on the Treaty of Waitangi
and the Waitangi Tribunal. I thought
perhaps a little bit more information and explanation might help you overcome
your fears.
You know how you scoffed at the idea that ‘singing a song
can make a river yours’? Surely it is not so strange that a group of people who
exercise rights and responsibilities in relation to a river (or any other
natural resources) would record what those rights and responsibilities are?
That they would give expression to them in a statement that would be recognized
by others? There is nothing magical or spooky about this. You say you are keen on certainty in property
rights so I thought you would have liked this kind of thing. I know this is a
different form of expressing a legal relationship and articulating legal rights
and obligations than is used in common law legal systems, but it would be a bit
silly to expect legal systems with different histories and philosophies to
develop the exactly the same mechanisms for recording legal rights and
obligations.
Sorry, I forgot that you don’t think Māori had a legal
system before 1840. It is hard to know what makes you think that, given the
extensive evidence, readily accessible in Waitangi Tribunal reports and other
research, that illustrates a system of Māori law that included mechanisms for
deliberative law-making, keeping leaders accountable, the allocation of rights
and responsibilities, dispute resolution, forming contractual relationships,
ascertaining tortious liability, promulgating procedural rules, and applying
legal principles. If you’re suggesting that this isn’t a legal system because
its institutions don’t look exactly like the institutions of Western legal
systems, I’m afraid that just sounds racist to me.
I know that the phrase ‘might makes right’ has a catchy kind
of ring to it, but let’s not get taken in by an easy rhyme. Māori rights to land and natural resources
were allocated according to law and principle.
Taking territory by force may have had practical implications for the
exercise of land rights, but it was not a source of legal rights itself if it
could not be supported by evidence of kinship links, historical connection and
use recognized by law. A similar
situation exists in the New Zealand state legal system today, so that if I stole your
television, for example, I might be able to keep it and use it for as long as I
could evade the police, but the act of taking it does not give me any kind of
legal rights. It does not mean that
‘might makes right’.
I hope that gives you a bit more of an idea of the way in
which the Māori legal system operates and helps you to understand the issues
better. Because there really is nothing to be
scared of in the idea of partnership.
