Tikanga’s place in law
Can Ma¯ori law decide whether Peter Ellis’ appeal should go ahead? The Supreme Court faces a big question, writes Martin van Beynen.
It seemed a strange legal pairing. The Christchurch Civic Creche case and Ma¯ ori traditional rules and tenets called tikanga.
The combination was first raised when lawyers gathered in the Supreme Court in Wellington in November to argue about whether Peter Ellis’ appeal against his child abuse convictions in 1993 could continue after his death.
Ellis, who fought for decades to clear his name, succumbed to bladder cancer in September, aged 61, after the Supreme Court had already given him leave to appeal.
Lawyers had spent months preparing submissions for the November hearing but none referred to tikanga. It was Supreme Court Justice Joe Williams, the former chairman of the Waitangi Tribunal, who drew attention to the apparent gap in their thinking.
Williams, who has written extensively about tikanga and its place in New Zealand law, pointed out that tikanga held that a person’s mana (prestige, authority) continued after death and the mana extended to the wider wha¯ nau. This, of course, is not a foreign concept to Pa¯ keha¯ .
But Williams suggested tikanga’s view on mana might allow an appeal right, designed to repair a wrong to the mana of an individual and family, to continue in the courts even after the appellant had died.
The lawyers were sent away to prepare further submissions, which were heard with mihi and karakia last month. Lawyers for both the Crown and for Ellis argued that tikanga supported their respective positions. The Supreme Court reserved its decision.
If the court decides that tikanga has a major bearing on the argument as to whether Ellis’ appeal should go ahead, it will represent a landmark decision. It will be the first time in the past 100 years that tikanga has been applied to an essentially Pa¯ keha¯ common law dispute.
Such a decision could potentially send New Zealand law into new and uncharted directions.
It is not hard to see the practical challenges that recognition of unwritten tikanga would entail. Iwi have their own slant on particular rules and values, and experts can be hard to find and authenticate.
In the Ellis case, both Crown and defence lawyers held a twoday wananga to nut out the relevant tikanga rules and how they could be applied. The report was then supplied as advice to the Supreme Court to make the final decision.
Tikanga is derived from the Ma¯ ori word tika, meaning right or correct, and means the customary rules for regulating human behaviour that have been honed over time.
In a widely cited article published in 2013, Justice Williams (then a High Court judge) explained that Ma¯ ori society was organised according to ‘‘enforceable customary legal norms’’ that he believed were ‘‘a necessary and inevitable expression of selfdetermination’’.
In his paper, Justice Williams said tikanga was law designed for small, kin-based village communities and was as much concerned with peace and consensus as it was with the level of certainty expected from judges in a complex, non-kinbased community.
Values were more important than directives because an outcome considered unjust in tikanga terms would be rejected by the disputants and their extended family.
He accepted there was considerable debate about what core values ‘‘the holders of the first law brought, adapted and still hold’’ but outlined his own list that included whanaungatanga (extended family, relationships, responsibilities), mana (authority, prestige) and utu (reciprocity, obligation).
Justice Williams wrote that the country had been through two previous phases of lawmaking. The first was the rules developed by the first inhabitants of Aotearoa, and the second, those brought in and advanced by settlers and their descendants.
He identified a third phase when tikanga Ma¯ ori fuses with New Zealand common law tradition to form a hybrid law of Aotearoa that could be developed by judges case by base.
Eurocentric statute law and English common law, a body of rules stemming from English customary practices that evolved by the courts deciding disputes, has dominated the modern New Zealand legal system, despite Te Tiriti o Waitangi.
The change began in the 70s with recognition of the Treaty and aboriginal title in land. Ma¯ ori concepts such as kaitiakitanga (guardianship), whangai (Ma¯ ori adoption practice) and taonga (treasures) were incorporated into resource management, land legislation and matrimonial property legislation.
Te Urewera national park was given a personal legal entity in July 2014, with ‘‘rights, powers, duties, and liabilities’’, and in 2017 the Whanganui River became a legal person.
However, it wasn’t until the Wakamore case in 2012 that the Supreme Court explicitly recognised that tikanga was part of New Zealand’s common (as opposed to statute) law.
James Wakamore was a Christchurch school caretaker who died suddenly, aged 55, in 2007. His Tu¯ hoe family travelled to Christchurch and, after a fraught family meeting, departed with the body, burying Wakamore next to his father at the Kutarere Marae in O¯ po¯ tiki.
The court had to decide if tikanga controlled Wakamore’s final burial place or whether the executor under his will, his widow, Denise Clarke, should make the call.
All five judges of the court accepted tikanga was part of the common law and some held it had the ability to significantly change New Zealand’s common law. The court decided the Tu¯ hoe burial custom was reasonable and enforceable but in the end found that Clarke, as executor, retained the right to decide where her partner should be buried.
Jacinta Ruru, a law professor at Otago University specialising in tikanga, says ‘‘being inspired by tikanga is a good way to ensure the continued development of the Aotearoa common law’’ and displays maturity as a nation.
‘‘There are certainly sensitivities here, but if our state legal system can open up and learn about the Ma¯ ori legal system, then this is a good thing. Our two legal systems – Ma¯ ori and state – should be able to talk to one another.’’
She sees a potential Supreme Court decision to allow the Ellis case to proceed despite his death, on tikanga grounds, as the slow evolution of a distinctive law of Aotearoa.
The New Zealand legal system’s recognition of Ma¯ ori law was not new, although in the
‘‘It takes a great self-denial for a judge to say we apply the rule, we don’t make it.’’
past it tended to be recognised only so it could be ‘‘squashed’’.
That the highest court in the land has asked for submissions on tikanga is an important milestone, she says. Normally it was left to lawyers to try to persuade the courts tikanga was relevant.
While tikanga differs slightly from iwi to iwi, the New Zealand courts are already generally well versed in it, she says. The Ma¯ ori Land Court and the Environment Court regularly deal with tikanga and received expert evidence from Ma¯ ori specialists.
The Te Ture Whenua Ma¯ ori Act (Ma¯ ori Land Act) 1993 had a mechanism for the High Court to state any question of tikanga to the Ma¯ ori Appellate Court which had expertise in tikanga Ma¯ ori.
Difficulties such as uncertainty of the law and the depth and complexity added by a new body of customary jurisprudence should not prevent the common law from developing, Ruru says.
‘‘. . . the common law of Aotearoa is different to the common law of other countries. Our common law must reflect the values of Aotearoa New Zealand. Engagement with tikanga is essential for the flourishing and robustness of our common law.
‘‘I think it is really important to recognise that there are two functioning legal systems in NZ. One is the Ma¯ ori legal system. The other is our state legal system, which includes the common law. Our state legal system is mostly entirely influenced by what happened in England hundreds and hundreds of years ago. We should open our eyes and hearts to also be influenced by the first legal system of this country.’’
The country was already moving towards a hybrid of tikanga and English common law that would represent a third stream of law.
The judiciary and the profession have been seeking ways to upskill for years, she says.
She is working with other Ma¯ ori law academics to produce a report that makes ‘‘a preliminary call to revamp the legal profession and importantly legal education to start to deliberately move towards a bijural, bicultural and bilingual system.’’
Lawyer Stephen Franks, who was an ACT MP between 1999 and 2005 and stood for National in 2008, sees the greater influence of tikanga as a dangerous trend that undermines democracy and the rule of law.
A hybrid of tikanga and common law would be inconsistent and uncertain, he says. ‘‘What we are doing is licensing our judges to decide cases on how they feel, and not according to law. Because it is unwritten, tikanga is easily invented to suit and you can’t subject it to the normal rationality constraints.
‘‘The common law evolved with a whole lot of very pragmatic rules made by judges who denied themselves the freedom to make moral judgments.
‘‘They said if we are going to rule by law we have to know what the law is in advance and any person has to be able to read it and know what is lawful and not lawful.
‘‘There are lots of things in common law that said we are not here to ensure that we feel good at the end of the case. We are here to ensure the law is predictable, certain, coherent.
‘‘My problem with tikanga is that it’s from a society that regards the fight as just as important as the outcome. That bruised feelings are just as worthy as tangible damage. You can have a society that is focused on grievances and the past, or you can have a society that says much crying over spilt milk doesn’t help.’’
He believes tikanga gives judges a moral justification for becoming ‘‘our priests’’.
‘‘To know what is lawful you will have to go and ask a judge, the great ruler, which is typical of the tribal society.
‘‘The joy of making law is really enticing to anyone who gets power. It takes a great selfdenial for a judge to say we apply the rule, we don’t make it, that is for Parliament.’’
lIn concluding his 2013 paper, Justice Williams ponders the next steps for tikanga and New Zealand’s legal system and wonders whether judges will become agents for change as they become better trained to address tikanga.
‘‘Will the first law evolve in the way that the common law did: from a system of local custom to a more positivist system of judge-made law?
‘‘These are issues judges and the Ma¯ ori community will be working through over the next generation. Lex Aotearoa is very much alive. It is still fragile but its survival is more certain now than in the past.
‘‘It is demanding that we change to address its challenges. I hope we Aotearoans are up for it.’’