Context is all.
This morning I was fortunate enough to attend an address by our Chief Justice, Dame Sian Elias. She reviewed the development of public law in New Zealand – particularly since the late 60s – early 70s, when both she and I were at Auckland Law School. At the end, there was just time for a couple of questions. One student asked about the experience and value of ‘sharing’ judges – that is, common law judges acting in other jurisdictions. The Chief Justice’s response was germane to the situation in the Library today.
Dame Sian spoke of her humbling experience acting as a Supreme Court judge in Fiji (in the days when they and we did such friendly things), and how starkly aware she very quickly became of her lack of context for decision-making. In contrast to the strict doctrine of the ‘division of powers’ to be found in Dicey, and especially in the US constitution, a common law constitution is much more fluid, and adapts to local socio-political circumstances. In the Fiji Supreme Court, she found herself lacking the perspective and judgement upon which she could always rely in New Zealand, and consequently became very respectful of her Fijian colleagues on the bench in relation to their grasp of indigenous conditions.
Her second example was acting as Counsel before the Privy Council for the appellants in New Zealand Maori Council v Attorney General [1994] 1 AC 466 (the case relating to Maori claims to radio air-waves). In the course of the hearing, one of the English Law Lords asked her, “…how long have these people been off the Reservations?”
It is incidents such as these that stop us in our tracks and make us suddenly very conscious of the dangers of too doctrinaire an application of a paradigm plucked from one jurisdiction to another where the context is not the same, and has not yet been explored.
Great Britain has a population of over 60 million; New Zealand has just over 4 million. Our population is very thinly spread up and down a long thin country, with half the population in Auckland, and only half of Auckland’s population sprinkled over the entire South Island. The University of Canterbury is six hours drive from the University of Otago.
There is good government support (yes! money!) for collaborative undertakings among research libraries in Britain (For example, in Law, there is FLARE: http://ials.sas.ac.uk/flare/flare.htm ). There is no parallel here.
In the first iteration of the Proposal there was a strange absence of a number of words we have come to expect to see in foundation documents. ‘Maori’, ‘Treaty of Waitangi’, ‘Tangata Whenua’ are just some of these. A few such terms began to make their cautious appearance in the Review.
It is to be hoped that for the future good health of the University of Canterbury, and for its Library, the haste with which the current proposed changes have been articulated and set on their course will be tempered somewhat before their final application by an increase in attention given to the realities of indigenous needs, aspirations, and conditions.
MG