Last Updated on March 18, 2025
For decades, I evaded self-identification as a lawyer. While I recognize the emancipatory work that legal professionals can accomplish, I do not include my law degree on my business card and only raise that training in acts of revealingly self-deprecating humour. The shame reflects a deepening suspicion of law as a colonizing order, but it also flows from experience that neither grand courtroom deliberation nor any other form of extraordinary discourse is likely to sustain what is important for Maori. Conversely, I have also come to recognise the limitations of bellicose protest, blatantly illegal activities and other attempts to dismantle neo/colonialism through acts of belligerence. Hence, this think-piece is my homage to the subversive activities of Maori that inhabit the space between what society deems legal and illegal, for it is such everyday and not spectacular practices that most inconvenience the neo/colonial state.
According to James C. Scott, the Art of not being governed is grounded in daily practices of apparent disorder that make subaltern peoples unintelligible to the monitoring and calculating functions of the state.[1] Scott emphasises strategic self-denial of the recording, categorisation and translation of cultural practices. He has been criticised for over-emphasis on such strategic illegibility as one of potentially many strategies by which Indigenous peoples disrupt neo/colonialism.[2] While he has proven the relevance of everyday resistance to an extent achieved by no other academic, his framing of cultural endurance is based rather too heavily on Indigenous evasion of colonial rule.[3] To delimit Indigenous activism to f(l)ight is to undervalue how, for instance, daily enactment of the nearly-illegal can so undermine colonial rationality as to prompt its transformation. Here, I argue that Maori defiance towards the criminalization of cultural harvests so unsettles state regulators that it generates new and significant concessions. While the regressive incrementalism of rights discourse may not sustain Indigenous resurgence,[4] concessions enacted through state embarrassment as opposed to those which flow from the state’s management of protest may prompt important moments of societal re-evaluation. Clandestine acts of minor, often involuntary offending are an important means through which Indigenous peoples unsettle the fiction of absolute colonial erasure. They routinize disparate acts into the fortifying momentum of indigeneity, and problematize the universalising assumptions and regulatory apparatus of the colonial state. Because the following vignettes involve somewhat illegal practices, I have chosen to avoid proper- and place-names.
DISCOMFITURE BY ROTARY HOE: Recently, I was engaged to represent an elderly Maori man in an out-of-court arbitration that, had its outcome been different, would have resulted in significant fines and the loss of his house and savings. Inadvertently, he had been contravening regional plan and fisheries rules for several decades. His sin was to care for shellfisheries that had sustained Maori communities for centuries. While it is legal to harvest those shellfish and whereas daily limits for personal use are generous, encouraging their growth and abundance through unauthorized forms of active management may contravene the law. The Eurocentric emphasis on preservationism understands nature as something best left untouched, but the elder understood that turning over and thinning shellfish beds were essential obligations that promoted healthy growth dynamics. Since the 1980s, rural depopulation of his homelands had reduced the benevolent disturbance upon which healthy shellfisheries are dependent. Yet, new technology and some ingenuity provided useful substitutes: the elder purchased and modified a petrol-driven rotary hoe that is marketed for domestic gardeners. During the next 32 years, he walked onto the sand flats at most low tides and “turned over a rugby field’s worth or so” of shellfish habitat, returning to each site at least twice a year. Since 1995, such activities contravened regional plan rules that require a resource consent for disturbing or removing more than a cubic metre of sand. Those rules were never intended to regulate harvesting nor management of shellfish, but rather they were established to control commercial extraction of sand and dispersal of sediment.
Notwithstanding that his personal form of shellfisheries management was unnoticed for such a long time and that he had produced the largest and most abundant pipi, tuatua and tuangi known to all parties involved, discovery of his practices led to a formal notice of abatement. Yet, the prospect of public empathy towards an 82 year old thrown before the courts encouraged state officials to pursue out-of-court arbitration. At all stages, the elder presented a convincing argument: shellfish had sustained his people for hundreds of years and he was therefore obliged to tend the beds. After all, his disturbance regime was clearly benefitting indigenous species of importance. Although refusing to commit to any change in that regime, he was cautioned and not fined. He returned to his work the next day, but now with an audience of media representatives and state environmental monitors. Each new iteration of arbitration attracts new monitoring and additional reporting in the media, but the state has no resolve to prosecute him further, rendering its regulations more broadly ineffectual. In the large harbour in which he works, the elder is now joined by seven others who have purchased and modified rotary hoes for similar acts of tolerated but essentially illegal work. While the state can absorb the blatantly illegal through punitive coercion, it may be so embarrassed by the almost-legal and by elders who can finesse the fine line of public opinion that it comes to accept the contradictions in its own rules. For local Maori, achieving substitution of legal strictures by de facto rights heralded a significant act of cultural maintenance, but it was not predicated on any self-displacement to evade the state’s reach.
NGA MANU O NGA WAIRUA E RERE: In Waitangi Tribunal evidence I wrote for one tribe, I detailed how customary harvests of native birds were criminalized in most parts of Aotearoa by 1912. In a landlocked forest enclave of the North Island, that presented a significant dilemma for its denizens who had limited access to alternative forms of protein. One hundred years later, their dilemma had shifted: bird populations continued to decline because invasive species and loss of habitat were more consequential than the impact of customary harvests. Yet, pakeha assumptions that the tangata whenua regularly poached native species had impacted on the latter’s mana and public reputation. Reverence for the birds that had once sustained them as kai meant that few if any locals were responsible for poaching and, indeed, the tribe had since become renowned for its conservation of kiwi (the ‘national’ bird) and kereru (a wood pigeon). In the opinion of elders, non-local Maori were responsible for clandestine acts of poaching. As tangata whenua had no opportunity to exercise legally their mana through bird harvests, there were few local rights within the area that outsiders could observe and respect, so the latter filled a mana-void with their own harvesting practices. Revealingly, they also disregarded the solely legal authority of the Department of Conservation (DoC) to control historically important resources.
Local elders met with DoC staff and with elders of tribes that surround their forests. They proposed a bold but illegal solution. They would recommence harvests of kereru, but only to provide the last meal for elders before departure of their wairua to other realms. Representatives of DoC comprehended the secondary intent of that strategy to regulate the actions of non-local Maori, but they also noted that reestablishment of harvests contravened many of its standard operating procedures and several acts of parliament. Of note, though, many DoC staff in the area are themselves Maori, and some of their pakeha colleagues are married to Maori women. Although they had universal(ising) obligations to the law and their Department, they too were enmeshed within the everyday, working amidst the daily routines that sustain relationships with friends, relatives and neighbors. Although they refused to sanction officially any harvests, they agreed to turn a postcolonial blind eye to the work of the elders. Since that time, only six birds have been harvested to become last meals of the almost departed. Signs of poaching are not evident because all Maori including those who are not local recognize the mana of the local elders to maintain the ritual of feeding ancestral kai to those about to pass. Subsequently, young, old, local and non-local Maori, along with DoC and many pakeha organisations have intensified their efforts to control exotic predators and competitors within local forests. Any evasion in this instance has been limited to DoC staff; tangata whenua have usurped the law without needing to evade its spatial scope, as they have exploited the difference between official power and the practical reality of the law in-place.
Nearly-illegal but everyday activities and illegal yet occasional practices can render the colonial state and its legal devices irrelevant by means that do not require grandiose constitutional reform nor running for the hills.
[1] James C. Scott, 2009, The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia, New Haven: Yale University Press.
[2] Sanford F. Schram, 2012, The artful study of not being governed: Better political science for a better world, Common Knowledge 18(3): 528-37.
[3] Bengt G. Karlsson, 2013, Evading the state: Ethnicity in northeast India through the lens of James Scott, Asian Ethnology 72(2): 321-31.
[4] Taiaiake Alfred, 2009, Colonialism and state dependency, Journal of Aboriginal Health 5(2): 42-60.
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