Tikanga’s place in law
Can Ma¯ori law decide whether Peter Ellis’ appeal should go ahead? The Supreme Court faces a big question,
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.’’