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 inequities that Pacif‌ic peoples around the 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 propose for Pacif‌ic peoples to start building a critical theory of our own – a

Pacif‌ic Critical Legal eory (PacCrit for short) – to then help us design and build the

vaka (canoes) that we will need for this new voyage. is article takes the 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 PacCrit to be an intellectual and political voyaging movement for Pacif‌ic

peoples, by Pac if‌ic peoples, that aims t o eliminate the ways in which t he law subordinates

us through producing critical scholarship and praxis which privilege the diverse voices

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 dream of becoming a lawyer. Even after raising three kids and

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 dream a reality. She still yearned to know the law, to use it to help

our family, our community and other people in need. But, due to reasons 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 dream of their children becoming doctors, engineers and lawyers, but

also dare to dream of becoming doctors, engineers and lawyers themselves. These

dreams have been realised by few, but for many Pacif‌ic migrants, the dream lies

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 many Pacif‌ic peoples a re unable to use, but a tool t hat is too often used

again st us.

After being schooled in the ways of the law within the privileged walls of law

school to rea lise my mum’s dream, I am n ow determined to rea lise my own dream

that I thankfully share with many other Pacif‌ic peoples – which is to ensure that

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

subordination by the law – a feat that often seems impossible and too far beyond

our reach?

While generations of oppression by the law present clear challenges to our

advancement of Pacif‌ic peoples, the truth is we are voyagers! Our ancestors 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 enduring message of Pacif‌ic

post-colonial scholar Epeli Hau’ofa reminds us, our ancestors did not conceive

the scope of their lives as being limited to small island masses but their universe

included the va st ocean that su rrounded them – “sma llness is a stat e of mind”.4

The reality that Pacif‌ic peoples living both inside and outside 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 critical legal theories to investigate and eliminate the ways in which the

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.