F. M. Brookfield - Waitangi & Indigenous Rights: Revolution, Law & Legitimation

This is a timely book. Its themes are todays big issues how New Zealands legal system should be constituted at a time of change to past certainties, of rapid globalization, of possible constitutional change, of local search for security and for identity. While they deeply concern Maori, Allen Curnow has expressed the uncertainty of other New Zealanders, including those of European descent:

Not I, some child, born in a marvellous year,

Will learn the trick of standing upright here.

Jock Brookfield offers a path to resolution, the product of a lifetimes reflection, research and experience.

Informed participation in debate is essential to New Zealanders effective performance of their role of citizen and the ability thereby to influence events. Otherwise, decisions will be made by default, without proper consideration and balancing of the competing values and priorities that are the stuff of a complex society. That way lies the repetition of past error and its grief, which is not yet behind us.

This substantial and readable work offers New Zealanders an alternative to such a course. By providing the wealth of Professor Brookfields own scholarship and that of other thinkers, including those with whose views he joins issue, it will contribute mightily to an understanding of our constitutional heritage, the issues and the options, at a time when pressures for change are increasing.

He is a master of his evocative theme. As an Oxford doctor and the doyen of New Zealand public lawyers, he identifies and offers penetrating observations upon the key issues of political and legal philosophy; as a member of a long-established New Zealand family, he does so with passion. His doctoral thesis concerned the legitimacy of state succession following revolution; his inaugural lecture as Professor of Public Law at the University of Auckland tackled the expulsion of Maori from their traditional fisheries within the theme of the legitimacy of the presence of Pakeha in New Zealand and St Augustines dictum

Set aside justice then, and what are kingdoms but fair thievish purchases? Because what are thieves purchases but little kingdoms?

That lecture was cited in and of profound importance to the series of judicial decisions and negotiations that restored substantial fisheries resources to Maori. Professor Brookfield also took a leading part in the preparation of the Tainui argument in their momentous Court of Appeal case in 1989. He has advised the Waitangi Tribunal.

But he is no zealot, as appears from the careful balance of his argument. Professor Brookfield is not one to engage in generalities that have not been thought through. He does not, for example, support the separatism of dual legal systems within New Zealand, supporting his point with the practical illustration of joint offending by New Zealanders of Maori and Pakeha descent. Rather he examines the practical realities through a principled lens: justice does require constitutionally secure protection for the minority within the nation state, and, while rejecting overseas solutions that could not work in New Zealand, boldly offers his own proposals for change.

This work offers a major contribution to our future. I commend it whole-heartedly .

David Baragwanath

Judge of the High Court of New Zealand, President of the Law Commission