Sunday, September 2, 2012

An Open Letter to Rodney Hide

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.