"Waitangi & Indigenous Rights: Revolution, Law & Legitimation"
F.M.(Jock) Brookfield, Auckland University Press, 1999.

 

If you want to be informed about the constitutional debate, you've got no alternative but to put in the hard yards reading your way through the whole legal and political morass that is constitutional law and process.

In this important book Professor Jock Brookfield develops the theme that the the seizure of power by the British Crown, and by settler governments, was a revolutionary process, and that Maori efforts since then can be seen as counter-revolutionary. He goes on to show that revolutions become legitimated by the passage of time and by practice, and eventually accepted.

Maori of course have never accepted that the New Zealand consitutional arrangements are legitimate, although most of Pakeha New Zealand did so long ago.

In Part 1 of the book, Professor Brookfield covers the theory and history of courts, constitutions and revolutions, legitimacy and revolution, and revolutionary ideology and colonisation. For the layman, this is a long hard read.

Part 2 focuses on the development of the constitutional arrangements of Aotearoa New Zealand, and covers the Treaty of Waitangi, and the revolutionary and counter-revolutionary to-ing and fro-ing between Pakeha and Maori between 1840 and 1986. It ends with Professor Brookfield's conclusions that we are in need of constitutional reform that includes the recognition of the Treaty of Waitangi and provides for the place of Maori in the constitution.

He states that this itself will be revolutionary, and that it needs to be a "quiet revolution".

Politicians, judges and constitutional lawyers are for the most part extremely conservative and reluctant to contemplate any changes to our constitutional arrangements. Against this establishment view Professor Brookfield might be seen to be quite radical. However he probably sees himself as quite conservative.

Maori and other constitutional activists, such as Moana Jackson, Annette
Sykes and Jane Kelsey might see Professor Brookfield as very conservative.

Whatever your point of view, I think this book is an important contribution to the constitutional debate. If we are to effectively engage the establishment in a constitutional debate we need to have all points of view clearly stated and in the public domain. And although constitutions are essentially political documents, we need more books like this to help de-mystify the legal minefields around constitutional matters.

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