We Are Voyagers!' Building a Pacific Critical Legal Theory for a New Voyage to Freedom
| Author | Fuimaono Dylan Asafo |
| Position | Lecturer, University of Auckland |
| Pages | 99-122 |
* Lectu rer, University of Auck land. I want t o thank Trea sa Dunworth a nd Helena Kaho for the ir
invalua ble support and c ontribution s to this pape r. All errors a nd inaccurac ies are my own.
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“WE ARE VOYAGERS!” BUILDING A PACIFIC
CRITICAL LEGAL THEORY FOR A NEW
VOYAGE TO FREEDOM
Abstract
e many complex in equities that Paci fic peoples around th e world face today call
for a new voyage to new p laces of freedom from subordi nation by the law. In respons e to
this call, I pr opose for Pacific peop les to start buildin g a critical theor y of our own – a
Pacific Crit ical Legal eory (Pac Crit for short) – to then hel p us design and build th e
vaka (canoes) that we will nee d for this new voyage. i s article takes th e first step to
drafting a blue print for PacCrit th at draws on existing Paci fic methodologies, sc holarship
and praxis and c ritical race theori es from other peoples of co lour. My first draft bluepr int
proposes for Pac Crit to be an intellect ual and political v oyaging movement fo r Pacific
peoples, by Pac ific peoples, that aims t o eliminate the ways in which t he law subordinates
us through prod ucing critical s cholarship and pra xis which privile ge the diverse voice s
and aspiratio ns of Pacific peoples.
I. Introduction
Tatou o tagata folau!
E vala’auina, e le atu a
o le sami tele e o mai
Ia ava’e le lu’itau e lelei
Tapenapena1
My mum had a dre am of becoming a l awyer. Even afte r raising t hree kids an d
working as a nu rse for 20 years, she wa s determine d to go to law school in her for ties
to make her d ream a real ity. She still yea rned to know t he law, to use it to help
our fami ly, our communit y and other people i n need. But, due to re asons beyond
her control, her dr eam was not meant to be. She i s like many Pacific m igrants who
1 Opet aia Tavita Foa’i and L in-Manuel Miran da “We Know the Way” in Moana: O riginal Motion
Picture Soundtrack (Walt Disney R ecords, Burba nk, 2016).
We are voyagers!
Summoned by, the m ighty gods
of this mighty oc ean to come
We take up the good chal lenge
Get ready
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not only drea m of their chi ldren becomin g doctors, engi neers and law yers, but
also da re to dream of be coming doctor s, engineers a nd lawyers themselves. These
dreams h ave been reali sed by few, but for many Pacific m igrants, t he dream lie s
dormant i n their children a nd children’s child ren.
What I have lea rned from the sacri fices of my mother and other Pa cific migrant s
is that the b arriers to lega l education for Pacific peoples h ave not only made the law
a tool that m any Pacific peoples a re unable to use, but a tool t hat is too often used
again st us.
After b eing schooled in t he ways of the law wit hin the priv ileged wal ls of law
school to rea lise my mum’s dream, I am n ow determined to rea lise my own dream
that I tha nkfu lly share w ith many other P acific peoples – which i s to ensure th at
the law can no l onger be used as a tool to oppress a nd subordinate Paci fic peoples.
However, a great obsta cle to realisin g this dream i s the reality t hat the opportu nity
to formal ly study and und erstand the law i s only availa ble to a privileged few P acific
people. Therefore, the q uestion is: how can Pacific pe oples end our oppression and
subordin ation by the law – a feat th at often seems i mpossible and too f ar beyond
our reach?
While generat ions of oppression by the la w present clear cha llenges to our
advancement of Pac ific peoples, the tr uth is we are voya gers! Our ances tors were
voyagers who used t heir ingenuity and s kill to build the vaka (c anoes),2 i n order to
navigat e the vast Paci fic ocean for thousa nds of years, usi ng indigenous n avigationa l
techniques developed over several millennia.3 As the endu ring message of Pa cific
post-coloni al scholar Ep eli Hau’ofa reminds us, ou r ancestors d id not conceive
the scope of thei r lives as being l imited t o small isla nd masses but t heir universe
included the va st ocean that su rrounded them – “sma llness is a stat e of mind”.4
The realit y that Pacifi c peoples livin g both inside and ou tside of the Pacific
Islands fa ce significant ma rginalis ation and subordinat ion by the law calls us t o
embark on a “new voya ge” of our own to new pl aces of freedom fro m subordinat ion
by the law. Aroun d the world, other margin alised ethnic g roups have built their
own critic al legal t heories to inves tigate and el iminat e the ways in which t he
law subordi nates their res pective groups t hrough crit ical scholar ship and prax is.
However, there is cur rently no formal crit ical legal theor y or critical rac e theory
2 Damon Sa lesa “Epilogue: Ta ngata, Moan a and Whenua” in Sea n Mallon, Kolokes a Mahina-Tua i
and Damon S alesa (eds) Tangata o Le Moana: New Zea land and the People of the P acific (Te Papa
Press, Well ingt on, 2012) at 33 8. As Sa lesa notes: “ The ancien t vaka that al lowed people to t ravser se
the moana w ere always cul ture-ca rrying ves sels, as are t heir modern day de scendants.”
3 Peter Adds “E xplorers and pioneers: T he first Pacific people i n New Zealand” in Se an Mallon,
Kolokesa Mah ina-Tuai and D amon Salesa (eds) Tangat a o Le Moana: New Zealand and t he People
of the Pacific ( Te Papa Press, Well ington, 201 2), at 17.
4 Epeli Hau'ofa “Ou r sea of islands” in Er ic Waddell, V ijay Naidu and Epeli Hau'of a (eds) A New
Oceania: Rediscovering Our Sea of Islands (University of the So uth Pacific, Su va, 1993) at 7.
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