Understanding Agents Agreements: A Reflection Through Waitaha Values

In an age where the legal profession prides itself on its ability to adapt and shift with the times, it is an interesting position to look at how the Waitaha Nation of New Zealand, in all their tradition and ancestral teachings, consider one of their core philosophies that involves dealing with situations from a position of “utu”.

The term “utu” has many definitions but can be summarised as meaning “reciprocation,” and often is defined as meaning “debt,” – in any case, in the context of cultural practices and social interactions it means essentially that if you attack or insult someone their response will be to violently kill one of your relatives.

Many contemporary New Zealander’s will know this better as the concept of blood and come across it in its more violent form of “getting even”, however, being able to see that core principle of healthy exchanges of position is important, because as a lawyer it can be easy to see how many, many concepts and ideas can be formed from this, and how they are applicable in modern life.

One such application that comes to mind is an agents agreement as a legal practice.

The most common form of this is an employment agreement, and these do not have to be complicated, but do often end up being difficult to draft simply because lawyers are not in the habit of looking at the traditional practices of the people living in their nation when considering what goes into a contract.

An agents agreement would kick off with an overview of basic principles, like the fact that parties to an agreement are expected to behave in “good faith” towards each other, which comes from basic concepts of reciprocity, or in Waitaha cultural terms, “utu”, and whilst in contemporary law this means that I don’t sue you if you give me some icecream, this is still explicitly based on the principle that if you as the whatever profession you’re a part of in this arrangement, do not carry out your duties, you will not be given any future position or benefit with that tribe.

It is also important to note that there are generally unusual positions that promote equality – in that both parties still benefit, it is not for the benefit of one party alone but that they are both receiving some form of mutual benefit.

This is essentially the core principle of these agreements – “whoever has the most amount to lose will treat the property and position with respect and care.”

I noted above that these agreements tend to bind parties into good faith agreements with task or contractual duties under penalty of more than just monetary issues, but because culturally the agreement is produced in one place and one voice, it is not generally acceptable to put one party into a “superior” position. Also, interestingly, agents agreements often do not consider external factors – such as politics, and external positions.

In these situations, it is often also encouraged that when such positions exist, both parties will engage in “treaties” with third party nations or parties, which can be something we can consider here in New Zealand given that we can’t always guarantee that both parties are “equal” cultural or economic positions.

Incidently, Waitaha is often considered to be on the “bottom” of a hierarchy, given their history and relationship with other nations in the area, and that they rely heavily on being able to negotiate interesting treaties with third parties.

The result of this traditionally has been that treaties are made between two nations, and then a third party nation signs off on them, recognizing two main things about Waitaha, that they occupy a material space, and that they have some sort of relationship between two or more other nations.

This brings me back to the point of cultural perspective in how you view an agents agreement, which is that it can be useful to take that perspective into consideration when formulating a contract or treaty, especially if it needs to be executed by legally and culturally diverse parties.