Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
PREFACE
TūHONOHONO: CUSTOM AND THE STATE –
CELEBRATING THE LAUNCH OF TE MāTāPUNENGA1
THE HON JUSTICE SIR DAVID BARAGWANATH
The week of 22 June 2007 was a time for treble celebration. That day and over
the following weekend we recognised the brilliant success
to date of Te
Mātāhauariki and looked to what we were sure would be its exciting
future; the following Friday there was
a further event to mark the 20th
anniversary of the Māori Council case; that evening Te
Mātāpunenga ran down the skids into the water to begin its
voyage.
The title of the symposium of which this issue of the Yearbook of New
Zealand Jurisprudence at last provides a permanent record – Custom
(which alludes to Māori custom) and the State – took me to the
sometime
New Zealander Karl Popper who, with his intellectual genius tempered by
exposure as a Jew to the injustice of Hitler, analysed the
raison
d’être of the state. In his celebrated Open Society and its
Enemies2 he argued that it is simply to ensure justice: that the
strong do not bully the weak. That should be the function of the laws and
institutions of the state.
But as all of us know so well, it is never enough for minorities – even
those equipped with a solemn Treaty promise –
to sit back and expect their
rights to be protected and their culture promoted. They must take positive steps
in their own and in
the wider public interest. That truth is what the
Māori Council case was about. It is also, in my view, a major
element both of the original justification for Te Mātāhauariki and of
its
stunning vindication today in Te
Mātāpunenga.
1 The edited text of a speech by Justice Baragwanath at the opening of the Tūhonohono symposium, marking the release of the pre-publication draft of Te Mātāpunenga on CD to all symposium participants. The publication of the work in final, printed form is expected in 2012–13.
2 The Open Society and its Enemies: The Spell of Plato (Vol 1, Routledge, UK, 1999) at 111.
vi Yearbook of New Zealand Jurisprudence
Vols 13 & 14
Schiller wrote “die Sprache ist der Spiegel einer Nation”:
language is the mirror of a people. In 1985, appearing before
the Waitangi
Tribunal as it heard the Māori language claim, Sir James Henare echoed that
sentiment in what are now two of New
Zealand’s official
languages:3
The language is the core of our Māori culture and mana. Ko te reo te
mauri o te mana Māori. (The language is the life force
of the mana
Māori.) If the language dies, as some predict, what do we have left to us?
Then, I ask our own people who are we?
Conquest by the English language of aviation, business and now the internet
has been due to its accessibility in written form. The
burgeoning of English has
created a cultural neocolonialism more potent and long-lived than the British
Empire which did so much
to develop it, including the invasion of the
Waikato.
It is therefore wholly appropriate that, as a counter-attack to the cultural
and intellectual equivalent of the Land Wars, this mighty
Compendium of
References to the Concepts and Institutions of Māori Customary Law
should be launched in the heart of the Kīngitanga, on Raupatu land at
what was a military base and is now The Tainui Endowed
College. Wouldn’t
Sir Robert be pleased!
While diminution of a language diminishes both the people and their culture,
the opposite is equally the case. Professor Frame’s
lucid expression of
the purpose first of Te Mātāhauariki and now of Te
Mātāpunenga recounts the establishment of the
Institute:4
to explore the possibilities for the evolution of laws and institutions in
New Zealand to reflect the best of the values and concepts
of both founding
peoples of the state, Māori and European.
The name Tūhonohono, or bonding together, expresses perfectly the vision
of a cohesive New Zealand jurisprudence.
Every day in my court we see the evidence of the social and economic
consequences of the monoculturalism which is all too evident
in this address.
But as those of us brought up in English-New Zealand law slowly unwrap our
xenophobic jurisprudential mummy-casings
we are coming to appreciate the truths
of which the Compilers write in their inspirational
Introduction.
4 “A Short History ...”, this volume.
2010 & 2011 Preface
vii
My initiation was at Te Hāpua two decades ago this week. The elders of
Muriwhenua courteously and patiently began to introduce
me to the overriding of
their culture by the European juggernaut, which had used monocultural laws and
institutions to sweep away
the fishing rights their ancestors had enjoyed for a
millennium. Since then much has changed. So it was my privilege last year,
chairing
the Rules Committee, to introduce Rule 65A of the High Court Rules
implementing the right to speak Māori in court, belatedly
acknowledged by
the Māori Language Act 1987.
But that is small fry. For the past eight years, under the visionary
leadership first of Judge Brown and later of Professor Frame,
the Editorial
Board consisting of Alex Frame, Richard Benton and Paul Meredith has been
working on the big one. Like James Murray’s
Oxford Dictionary,
Te Mātāpunenga includes the labour of others. But those others
are not mere hoarders of information but scholars in their own right, Māori
and
Pākehā. They include Dr Tui Adams, the late Nena Benton, Tonga
Karena, Joeliee Seed-Pihama, and Wayne Rumbles, backed up
always by the great
administrative support of Sue MacLeod. The quality and quantity of their work on
this and other projects is outstanding.
For those of the Advisory Panel it has been an immense privilege and a
delight both to meet the intellectual leaders of our society
and to see
something of the work in progress. One of our number has been of great
assistance to the Team – Dame Joan Metge.
Unlike any dictionary, it is not confined to words and a sterile account of
their meaning and derivation. Instead the authors have
applied the lesson of
Bentham, adopted by Professor Hart in his essay “Definition and Theory in
Jurisprudence”5 and by the New Zealander Professor Donald
Harris QC in “The Concept of Possession in English Law”.6
Legal concepts cannot be defined, but only described by reference to
illustrative cases. One or two judges have overlooked that lesson,
by trying to
define Māori culture with the help of conventional dictionary
definitions.
Te Mātāpunenga now comes to our aid by providing for each
entry its context, which at last Western jurists are coming to realise is
critical to understanding
any legal thing. That is the state of the art.
But it does more. Vitally, it makes Māori language and concepts
accessible to scholars and the general public alike. Like Te
Māori –
the Exhibition that transformed Western appreciation of Māori art and
craftsmanship – this great treasury
of historical materials brings the
Māori world alive for others.
6 Anthony Guest (ed) Oxford Essays in Jurisprudence (Clarendon Press, Oxford, 1968) at
69.
viii Yearbook of New Zealand Jurisprudence
Vols 13 & 14
The Māori artefacts so prominent in the grand new Musée du quai
Branly in Paris, as well as in the British Museum and
in other great galleries,
are now acknowledged as a major contribution to world culture. In future
scholars and general readers alike
will be able, internationally, to add the
wealth of information and erudition of this volume to their intellectual store.
My expectation
is that, like Sir George Frazer’s Golden Bough in
1890 with its introduction to new experiences and ideas, the work will capture
the public’s imagination. Lacking the capacity
to express the sentiment in
te Reo, I adopt Keats’ way of putting it:7
Then felt I like some watcher of the skies
When a new planet swims into his ken;
Or like stout Cortez, when with eagle eyes He star’d at the Pacific
– and all his men Look’d at each other with
a wild surmise –
Silent, upon a peak in Darien.
Even more important, in my view, is the message Te Mātāpunenga
has for Māori. This is an outstanding addition to the list of great
Māori works of scholarship. Some 12,000 miles and 400
years away
Pākehā New Zealanders identify with Shakespeare’s vision –
take his “Sir Thomas More’s”
account of
refugees:8
Grant them removed, and grant that this your noise Hath chid down all the majesty of England; Imagine that you see the wretched strangers,
Their babies at their backs and their poor luggage,
Plodding to th’ ports and coasts for transportation...
used to lend emphasis to a recent immigration judgment.
Like the role of great literature for the Western world, Te
Mātāpunenga shows to Māori what they have done, what they can
do, and indeed what they are. Its account of Māori achievement will add
to
the confidence, self-esteem and vision of the young Māori whose sense of
full participation in all that is good in New Zealand
society is so crucial to
its future and to theirs.
7 “On First Looking into Chapman’s Homer” (October 1816).
8 Sir Thomas More, Act II, Scene IV. (The play is ascribed in part to Shakespeare.)
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZYbkNZJur/2011/2.html