Letter: Ancient Customs and Western Law

Dear Editor, the recent court case that declared Tangaroa the legal Tamatoa Ariki of Aitutaki has had an impact on the people (Tangaroa declared the legal Tamatoa Ariki after three years of legal battle, 7 August 2024).

I don’t think people realize what it means for them to take cultural issues to a Western court. They set a precedent that now allows white people’s laws to determine cultural outcomes. Rather than resolving it internally no matter how long it takes. In short, they allowed an outsider to decide the fate of future generations, choose leaders, and allow that decision to be enshrined in white people’s laws.

Also read: Tangaroa declares Tamatoa Ariki legal after three-year legal battle

Using a legal system that is not rooted in the cultural traditions of our people will lead to outcomes that are inconsistent with our values ​​and practices. The framework of Western law cannot fully capture the nuances of our people’s cultural practices or conflicts. When these issues are taken away from the people and resolved through Western law, it will set a precedent that undermines our traditional ways of resolving disputes.

This situation leads to further loss of autonomy for our people (and God knows we have lost a lot) and will erode trust in traditional practices. It will also set a legal precedent that can be used in future cases to further entrench the use of traditional methods by Western law. Potentially further erosion of the people’s autonomy and identity.

I am deeply frustrated by the decision to deal with cultural issues through Western laws rather than resolving this issue within the people through centuries-old legends. This is because my concerns reflect the fear of further loss of cultural autonomy and the imposition of external values ​​on the internal affairs of the people.

Cultural matters often require a nuanced understanding and respect for traditions that may not be fully understood or even recognized by Western law. The involvement of Western law in such matters may result in decisions that are inconsistent with people’s values ​​and customs, which may cause harm or provoke resentment.

It is also important to recognize the risks mentioned above – using Western law when convenient could set a precedent that undermines people’s ability to solve their own problems in the future. This is further complicated by the involvement of legal professionals who may not fully understand or prioritize these cultural nuances.

I do realize that it is a difficult balance to strike between seeking justice or resolution and maintaining cultural integrity. What is most important is to preserve cultural practices and resolve conflicts in a way that respects and honors the traditions of the people.

Maybe it’s time to appeal this decision because the people need to decide the outcome, not white western laws. You can’t have it both ways because it happens too often, people follow the traditional way of dealing with the issue and then try to use white people’s laws when they disagree. Historically, courts are reluctant to interfere because they know full well that it will set a precedent.

The court should have insisted on letting the people sort it out themselves, no matter how many times they tried to use Western law. Moreover, the people and their supporters are naive, as can be seen from the congratulatory messages on social media. We know that this is not about justice; it is about who can tell the most convincing story to convince the court.

If there is grounds for appeal, and the appeal is successful, appropriate internal triage will be carried out based on the status of tikaanga, akapapa, toto and tuakana, no matter how long it takes. Too many of these claims are because the tail thinks it wags the dog, not the other way around. The tail will only wag the dog by agreement, consent, appointment or agreement.

Appealing the ruling on the basis that it should be decided by people within the community rather than by Western law is indeed a powerful statement. It acknowledges that some issues are deeply rooted in cultural practices and cannot be fully understood by those outside the culture.

If the grounds for appeal are successful, this could be a way to reaffirm the rights of people to handle their own affairs. Ultimately, such an approach would reinforce the importance of cultural autonomy and the need to resolve such issues internally while respecting hierarchies and procedures that have been passed down through the generations.

There has been a huge conflict between traditional cultural practices and the influence of Western jurisprudence since independence in 1965. The concerns I have expressed highlight the importance of maintaining cultural integrity and the right of people to self-determination.

Sadly, the people and their supporters may be celebrating short-term victories without fully recognizing the long-term implications of future pain. The danger is that such decisions could undermine traditional authority and practices and have wider implications for the ability of people to govern themselves according to their own values ​​and customs.

My experiences in New Zealand and the Cook Islands and my insights into these issues highlight the complexity and necessity of protecting cultural traditions while dealing with Western legal pressures. It is easier to go to the courts of law than to the courts of legend.

Write Kelly

Cook Islands Progressive Party