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Last Updated: 9 March 2024
Inaugural Downie Stewart Law and Society Lecture 2022
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Inaugural Downie Stewart Law and Society Lecture 2022
How can we Protect the Integrity of Tikanga in the Lex Aotearoa Endeavour?
Natalie Coates*
The following is a lightly edited version of a speech delivered by Natalie Coates for the inaugural Downie Stewart Law and Society Lecture at the University of Otago in Dunedin on 22 September 2022.1
Kupu Whakataki | Introduction
Tēnā koutou, it is an honour to deliver the inaugural Downie Stewart Law and Society Lecture. I appreciate you all coming out tonight on this beautiful evening. I must have brought the good East Coast weather down to Dunedin!It is a pleasure to be back at the University of Otago – a place that I was fortunate to call home for six years. Being here has prompted me to reflect on the passage of time. It has transported me back to my student days and induced vivid flashbacks of under-insulated flats, the unflattering wardrobe stalwart that was stubbies, food places and pubs that have long closed their doors, the furniture that was ignited for warmth and early gigs of the previously underground student band of Six60. I must admit I am forever grateful that I am of a generation where photos of university antics were only ever printed in hard copy destined for a back cupboard box never again to see the light of day.
I was introduced to law at the Otago University almost 20 years ago now by the formidable trio of Professor Mark Henaghan, Associate Professor Donna Buckingham and Dr Nigel Jamieson. To be honest, before coming to Otago University, I had never really given the law that much thought. Although I think it is fair to say that I initially treated it with suspicious caution. Law to me felt like a curious foreign matter with the mysteries of its inner working and rationale something to be plumbed and figured out. On reflection now, having been immersed in the law for about two decades both as an academic and practitioner, I cannot say that I have developed a love for the law itself. I suspect the
* Ngāti Awa, Ngāti Hine, Ngāti Tūwharetoa, Te Whānau a Apanui; partner at Kāhui Legal.
its decision of Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR
239. To stay true to the content of the lecture at the time, I have avoided integrating comment on Ellis v R in a post facto manner. There are aspects of this lecture where I draw on the following chapter: Natalie Coates “The Rise of Tikanga Maori and Te Tiriti o Waitangi Jurisprudence” in John Burrows and Jeremy Finn (eds) Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) 65.
deeply flawed manner in which the law throughout history has been a vehicle through which Māori have suffered significant harm and injustice means that particular proposition will likely always be one that sticks in the throat.
However, as I progressed through to about my 4th year of law school, when I was able to take optional papers that focused on issues that I was interested in, I started to develop an affinity not for the substance of law but for the practice and discipline of it. I came to understand the underlying power and influence of the law in the lives of people and the structuring of society. I also learned that through the force of words and rationale argument (usually paired with good timing, societal context, and a bit of luck) the scaffolding of the law can sometimes be convinced to shift. One way to think about this is to conceptualise the law as a whare (house) with lawyers as tradespeople that wield words and submissions as our tools. We work on the whare of law – sometimes to build on parts but other times to try and knock out a few windows or remove rotten planks. The practice of law is a never-ending renovation project – both a construction and deconstruction process. Of course, for anyone who has ever been involved in renovating a house the process can be painful and torturously slow. The common law similarly prides itself on incremental case-by-case development. But it is important nonetheless to appreciate that the law is not an immovable concrete edifice. Instead, like humans, from which law is a product, it has the capacity to be built on, manipulated and changed. It is of course very rare that as a lawyer you get to tinker with the foundations of that whare in a meaningful way, but those opportunities do on occasion arise. It was the prospect of possibly being involved in that foundation shifting aspect of law that excited me.
Early on in my law school days I developed a particular fascination with the capacity (and of course limitations) of the state law to see me, my whānau, my hapū, my iwi, Māori and our values and collective ways of being and thinking. When I was going through university the decision of the Court of Appeal in Attorney-General v Ngāti Apa [2003] NZCA 117; [2003] 3 NZLR 643 had just come out. This was of course the infamous case that acknowledged the potential for Māori customary rights in the foreshore and seabed to be recognised. In doing so, the language used in the case pointed to a reawakening of the largely latent doctrine of native title in Aotearoa and provided a clear framework for native property rights continuing and being recognised until they were “lawfully extinguished”. I was one of those, however, that went from being excited about the potential of Ngāti Apa to very quicky being disappointed as the Government, with the stroke of the legislative pen, severely read down and limited the recognition of pre-existing Māori proprietary rights and interests in the takutai moana. This case, and the subsequent fallout, showed me both the promise and limitation of the law in almost the same breath.
Over time, I became increasing intrigued with the legal system originally brought to New Zealand by the English that implanted itself on these shores (which I will refer to as “state law” in this lecture for
convenience) and the intersection and dialogue that it has with tikanga (the first law of Aotearoa). I wanted to understand that intersection, how it works, what it can be and what it should be. That interest has stuck with me and continues to inform what I do and my legal practice today.
Tō Tātou Haerenga | The trajectory
This brings me to the title of this lecture: how do we protect the integrity of tikanga in the Lex Aotearoa endeavour? The concept of Lex Aotearoa, first introduced by Williams J in a 2013 lecture, speaks to an English common law that perpetuates the operation of tikanga instead of suppressing it.2 The idea of Lex Aotearoa is therefore centred around and predicated on an interchange between legal systems that respects and maintains the integrity of tikanga. Williams J does an exceptional job of framing the concept of Lex Aotearoa and mapping in detail the Māori dimension of modern New Zealand law, with reference to legislation and cases, up to the date of his lecture. However, given the trajectory of the intersection between the two legal systems (even since Williams J’s lecture) I think it is timely to step back and reflect not just on the existence of Lex Aotearoa or our “third law” but how we do Lex Aotearoa well.Spoiler alert: I do not have all the answers to this question. However, I do think that the question itself is one of the most important that we face as a collective legal profession now and going into the future. Because, whether we like it or not, the trajectory of state law on its current predicted course, is one that is cognisant of and increasingly in a form of dialogue with tikanga Māori and te ao Māori concepts and thinking.
For example, there are a myriad of ways in which the exchange between state law and tikanga is now occurring. From a state-law-centric perspective, one of the clear points of intersection are the pepper-potted references to tikanga concepts in legislation. The oft cited refence to “kaitiakitanga” in the Resource Management Act 1991 or the concepts of “whakapapa”, “whanaungatanga” and “mana tamaiti” in the Oranga Tamariki Act 1989 are examples of this. Another major point of intersection is of course the Courts. In my view, beyond explicit legislative reference to tikanga, there are at least three ways in which Courts are grappling with how tikanga informs the common law.
The first is that tikanga has generally been accepted as a source of Māori rights and interests that can have an enforceable and binding effect on third parties. The classic example of this is native title where Māori, because of their tikanga relationship with the land and natural resources, are considered to have recognisable proprietary type rights. In New Zealand this doctrine is complicated by our vast legislative overlay. However, the fundamental common law position is that these rights exist as a burden on the Crown and others until they are extinguished.3
The extent to which these types of rights and interests are recognised is currently playing itself out in a number of different contexts before various Courts. These include the redirected takutai moana claims that are now being pursued under the Marine and Coastal Area (Takutai Moana) Act 2011 in the High Court.4 It also includes the test cases that are being brought around Māori rights and interests in freshwater that are being pursued in both the High Court and Māori Land Court;5 and a suite of cases that are currently before the Court of Appeal and Supreme Court where the bite of tikanga concepts such as mana whenua are being examined.6 That is, the Court is being asked to determine the extent that tikanga-based authority in respect of land has a binding effect on Crown action.
The extent to which Courts will uphold tikanga-based rights and interests as against third parties is a rapidly developing area of law and I suspect we have only just scratched the surface on testing how far Courts will be willing to go to uphold these rights.
Second, another way that tikanga speaks to the state legal system is through Te Tiriti o Waitangi. Overtime we have seen increasing acceptance that Te Tiriti is legally relevant in the broad public law sense. It is now well accepted that Te Tiriti is an extrinsic aid to legislative interpretation even where not mentioned.7 We also have recent Supreme Court precedent that has emphasised that an intention to constrain the ability of statutory decision-makers to respect Treaty principles should
772.
<https://thespinoff.co.nz/>.
not be ascribed to Parliament unless that intention is made quite clear.8 Subsequent case law has indicated that this appears to fold Te Tiriti into the principle of legality.9 It is uncontroversial to say that Te Tiriti engages and imports tikanga considerations. Therefore as Te Tiriti is increasing considered to be legally relevant, it is another route by which tikanga is also invoked.
Third, tikanga is relevant to the development of the common law generally. This argument was raised in the relatively recent Supreme Court case involving Mr Peter Ellis. Mr Ellis (a Pākehā early childhood teacher) was convicted of child sex offending in the early 1990s. Mr Ellis, however, consistently maintained his innocence and in 2019 the Supreme Court granted Mr Ellis leave to appeal his case. Shortly after his appeal was granted, Mr Ellis died. This threw up an important legal question: can or should Mr Ellis’ appeal to the Supreme Court continue despite his death? The Court requested that counsel prepare submissions on whether tikanga was relevant and if so what tikanga and how should it apply to this case? I came on to the Ellis legal team at this point to assist. I will come to the process that we adopted to get tikanga evidence before the Supreme Court. However, one of the things that I found remarkable was when we came back to Court to answer these questions, how much common ground there was between the parties (the Ellis legal team, the Crown and Te Hunga Roia Māori, who participated as an intervenor). It was agreed by all that tikanga was part of the common law of Aotearoa New Zealand and that there was well-established precedent to that effect; that tikanga values were relevant to informing the interpretation and development of the common law generally; and that tikanga was relevant to the question of continuance.
The nuance of the argument around the relevance of tikanga to Mr Ellis’ case, however, is important to understand. It was not argued that Mr Ellis (as a Pākehā) had a right to draw on tikanga as a source of rights and interests for him personally (i.e. the first category of rights that I have just mentioned). The argument was that when developing the common law in general, the Court should not just draw on the legal thread of principles that derive from England, but that we have an endemic jurisprudence in Aotearoa New Zealand. The Court can and should, in appropriate circumstances, draw on tikanga Māori values as an influential if not determinative factor. Ultimately, the Supreme Court granted leave for the case to continue however they reserved their reasons and indicated that they would release this with the substantive appeal decision. We have not yet received the reasons decisions.
Speculation on the outcome of a Supreme Court case is always
dangerous and opens one up to later eating their words. However, I
above n 7.
suspect that the Supreme Court will confirm that tikanga can be relevant to the development of our common law of New Zealand generally. This would acknowledge tikanga having broad legal validity and relevance as a legal and value system across our law. The actual weight that tikanga principles and values are given and the balance that is struck by Courts in different areas of the common law would need to be worked out in the usual slow case-by-case manner. But that tikanga would need to be grappled with and rationalised across the development of law generally means that in Court we could hold a mirror up to the values and cultural prejudices that have long informed state law and where appropriate seek to chart a new course. A unique way of doing and thinking about law in Aotearoa.
I was also fortunate enough to have been part of the legal team that advanced a similar tikanga-based argument before the Supreme Court about a month ago. Mr Smith from Ngā Puhi and Ngāti Kahu is advancing a claim against seven of the major greenhouse gas emitters in New Zealand.10 The essence of the claim is a tort-based one that says that the emitters had wronged him and his whānau and future generations. The specific claims were grounded in public nuisance, negligence, and a novel climate-specific tort. The emitters applied to strike the claim out in its entirety on the basis that the claim is not tenable. The High Court largely struck the claim out (bar the novel tort) and the Court of Appeal struck it out completely. Part of the argument in the Supreme Court to survive the strike-out stage was that tikanga principles inform the development of tort law in Aotearoa – and it has much to say about human conduct in relation to the environment and others and therefore can inform the way that we look at human-induced climate change and our law of “wrongs” in Aotearoa. What was particularly interesting for me was when oral argument was advanced on this matter I asked the Court whether they needed me to substantiate the starting proposition that tikanga is relevant to and informs the development of the common law. This was not considered to be necessary. Although this too needs to be confirmed by a decision, my sense was that I was being moved on to my next point not because tikanga was irrelevant but because the proposition that it can be relevant is now uncontroversial.
I think we are fast approaching a point (particularly in the upper courts) where as lawyers in Court we no longer have to fight and make the case for whether tikanga has relevance and application at all. Instead, we are finding ourselves in a place where the tricky question that really needs to be grappled with is how tikanga is relevant to the legal issue and question before the Court. This shift comes with significant opportunity. However, we are also walking ourselves into a place that is scary and does not come without risk. Fears of misappropriation, misinterpretation and misapplication of tikanga are real and valid. This is particularly the
case in light of our legal system having a historically terrible track record of doing right by Māori.
This brings me back to the importance of the title of my lecture: how do we protect the integrity of tikanga in the Lex Aotearoa project? If part of the trajectory of our state law is to increasingly draw on and be in dialogue with tikanga – the how we do that becomes really important. What can we do to ensure that when tikanga is in interaction with the state law that the dialogue is respectful, responsible and does more good than harm?
He Whakaaro | Some Thoughts
What I wanted to focus on for the balance of this lecture are some of the understandings and practical strategies that I think are important to have and implement as we as legal academics, students and lawyers navigate our roles in the dialogue between tikanga and state law. These are not exhaustive or perfectly formed but are simply five suggestions for conceptual and practice shifts, within the bounds of our current constitutional arrangements (many of which are already happening), that I think go towards at least charting us in a positive direction of travel.
1 He mana tō te tikanga | Tikanga has its own standing
In my opinion, it is vital to understand that although tikanga can speak to state law, it is not its home nor is it the source of tikanga. I do not have time to talk about and explain the nature and layers of tikanga even in a cursory way. But a simple well-known example to help understand the point is one that is close to my heart and hometown of Whakatane– the tikanga response to the tragic eruption of Whakaari at the end of 2019 that resulted in the death of a number of people who were on the island at the time. Shortly after these deaths occurred, coastal iwi placed rāhui or prohibitions on entry and use of the coastal waters for a temporary period of time over the waters extending from Matatā along the East Coast to Pōtikirua, a stretch of the coast approximately 200km long. What was remarkable was that, for various reasons, the public and community at large abided by and generally respected these rāhui. To put this in perspective, this is a coastal area during a period close to the height of summer that depends on access to the ocean for food and livelihoods. This example does not demonstrate that all people abide by tikanga all of the time. Like state law there are lots of examples where people breach tikanga. However, it illustrates tikanga acting as a living, breathing, functional system of law. That did not need to be looked at through the prism of the state legal system for validation or for it to have power, effect and impact in regulating and influencing the behaviour of not only Māori but others as well.
I think having an understanding that tikanga has its own mana and
exists in legal plurality with state law is helpful for three reasons.
First, it puts the dialogue in perspective. Although as lawyers we tend to be obsessed with state law and what it does and how it “recognises”,
state law does not hold a monopoly on the concept of law and often the operation and effect that tikanga has in guiding the real lives of people happens separate to and with very little thought to state law. Further, where a conflict or tension arises between the two systems of law, it should not always be assumed that the starting frame of reference for resolution is the primacy or hammer of state law. Not only does tikanga act as a modifier of state law itself, but often the best outcome when forced dialogue occurs between two systems of law is a negotiated one. For example, the Te Whānau a Apanui response to the initial COVID-19 outbreak was to place a rāhui over their territory and establish checkpoints to control entry in and out of their rohe for safety purposes. A legal collision was largely avoided through negotiation and respecting the role that tikanga had in the context of that community. Ultimately, the rāhui and checkpoints were supported by local and central government officials and the police.
Second, understanding pluralism can also give one an appreciation of the limits of the reach of state law. As articulated by Palmer J in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4):11
Just because a Court can do something does not mean it should. One reason for judicial caution is that legal precedents in case law will not be authoritative as to the content of tikanga. This flows from the ongoing capacity for tikanga to change and for there to be differences in tikanga, and the application of tikanga, between iwi and hapū. Iwi and hapū create, determine and change tikanga through exercising their rangatiratanga. Courts do not and cannot make, freeze or codify tikanga. If a court approaches tikanga in a particular case, it must recognise tikanga on the basis of the evidence before it for the purpose of that case. What is recognised by a court cannot change the underlying fact or validity of tikanga in its own terms.
Therefore although it must be acknowledged that the outcome of a Court case can have a practical implication on the operation of tikanga in terms of a particular proceeding, it should not be assumed that it is the final word on tikanga or that it even impacts or changes tikanga itself. For example, although the contested claims to mana whenua and interests in central Tāmaki Makaurau have long been before the Waitangi Tribunal and Courts, any formal legal outcome in those forums is unlikely to change the positions, understandings and tikanga of the various iwi involved.Finally on this point, appreciating that tikanga is a source and system of law in its own right influences how tikanga is drawn upon. If tikanga is understood as ground-up law that has a whakapapa (genealogy) and is intimately connected to the people from which it derives – when it is being recognised or drawn upon a direct connection to the source will likely be necessary. That is, particularly in complex cases, appropriate expertise will be required to explain the nuances of tikanga practices and
customs and determine how informing tikanga principles and concepts might apply to the question or issue before the Court. This brings me to my next point.
2 Waiho mā ngā tohunga | Defer to tikanga expertise
Connection to the source of tikanga and experts who understand tikanga is important to ensure fidelity to content and to mitigate against misappropriation, misapplication and misinterpretation. There are a number of different ways that this can be done depending on the context and complexity of the matter.One example is the wānanga process that was adopted in the Ellis case. The Supreme Court in Ellis directed that counsel consider the relevance of tikanga to the question of continuance and whether the appeal should continue to be heard in light of Mr Ellis’ death. This of course was a novel scenario that tikanga had not had to grapple with before. It accordingly necessitated a tikanga-based reasoning process (not too dissimilar at a high level to the common law process) where tikanga principles and past precedent were drawn upon and applied to the facts. Normally, when questions such as that posed by the Supreme Court are asked, the lawyers retreat to their respective corners and hustle experts to battle it out (either on paper and/or the witness box) to advance a position that supported their clients. However, in Ellis (and credit must be given to the Crown for this) all parties agreed to take a more tikanga-consistent approach to understand how tikanga might apply to the factual scenario. What do Māori do when seeking answers to complex tikanga questions? We wānanga.
A collective of tikanga experts was therefore brought together for two days to discuss, deliberate and debate the issues. There was no cross- examination but an open forum and exchange of respectful dialogue where matters were teased out and explored. Counsel for all parties were involved in the process throughout. From that wānanga, an agreed statement of fact from the tikanga experts was prepared and filed with the Supreme Court. This statement formed the basis of the tikanga that all parties relied upon in submissions. The statement drew on the principles of mana, whakapapa, whanaungatanga, ideas of hara / ea as well as past examples and applied those to the question of continuance. It was a tikanga-based way of providing a tikanga position for the Courts to draw upon.
The process that was followed in Ellis was one that I hope usefully provided some safeguards to ensure that tikanga was applied in a way that was tikanga consistent. Such a process to produce a clear, transparent and agreed statement can help to insulate tikanga and minimise the scope of those involved in the legal process (i.e. lawyers and judges) to unilaterally amend or “tutu” with the tikanga position on an issue. That is, whilst the Court still has the power to decide on relevance and how tikanga speaks to and develops the common law, the Ellis tikanga process gave a clear tikanga answer on the issue from tikanga experts.
Whilst this remains to be seen, this felt like a process that contributed to protecting the integrity of tikanga in a context where there were no iwi or hapū parties involved in the case.
Of course, a full Ellis wānanga is not realistic in all contexts, for example, in the District Court where there are multitudes of cases being churned through at pace. That is where a suite of other actions, tools, techniques and systems reform becomes important. However, particularly where tikanga is being applied to novel and complex contexts, a wānanga approach may be appropriate.
Another way of injecting expertise is for pūkenga (experts) to be appointed that can sit alongside judges and provide advice or evidence. For example, under the Marine and Coastal Area (Takutai Moana) Act 2011 there is specific provisions for the appointment of pūkenga to assist the Court in determinations.12 In this context, at least to my knowledge, pūkenga have been appointed in all of the substantive takutai moana determinations thus far to assist and guide the High Court.13 There is also general provision within the High Court Rules 2016 to appoint a court expert witness. Interestingly, in the Ngāti Whātua Ōrākei case (that involved a mana whenua dispute in central Tamaki Makaurau) Palmer J declined to appoint a pūkenga on the basis that he was going to hear ample tikanga evidence from the competing Māori parties.14 However, in his substantive decision he indicated that in retrospect it would have been beneficial to appoint an independent pūkenga to at least conduct a conference of tikanga experts at the outset of the case.15
Although having pūkenga sit alongside judges in cases involving tikanga issues is a positive step to assist in ensuring that tikanga is dealt with and assessed appropriately, there are limitations on their use. For example, the appointment of Court-appointed pūkenga is still relatively ad hoc and their advice is not decisive. There are also fundamental structural issues that can make the role of pūkenga challenging. For example, pure tikanga experts will not always be conversant in the language and adversarial environment of the state law, the Court environment is traditionally not conducive to tikanga-based resolution, and localised connections and expertise (which are vital in tikanga) are often written off as being a conflict of interest in favour of an independent expert. Despite this, the increasing number of cases that are coming before the court that utilise pūkenga means that we are evolving their role and learning how to best utilise their expertise in Court contexts.
One suggestion to build on the current advisory function of pūkenga would be to provide for tikanga commissioners that could either sit alongside a judge as a decision-maker or, where appropriate, be the sole
decision-maker. This would not be too dissimilar from the Commerce Act 1986 model that has provision for lay members to be appointed to the High Court for Commerce Act matters to ensure that expert evidence on complex competition issues is properly understood, tested and assessed by the High Court. The appointment of lay members to particular cases is at the discretion of the High Court. However, once appointed to a case, they become a member of the Court for the purposes of that case. The Environment Court is similarly comprised not only of judges but also Environment Court commissioners. A quorum for the Court is one judge and a commissioner (although the general practice is for a judge to sit with two commissioners). With the approval of the Chief Environment Court Judge, commissioners may sit without a judge. It is increasingly the expectation that where there is a tikanga or strong Māori dimension to an Environment Court case, there will be either a Māori commissioner or a Māori Land Court judge appointed to the Court. Having permanent tikanga commissioners able to sit on cases that engage tikanga could act as one of the “check and balances” when decisions are being made in the state-law context. This suggestion would require legislative reform.
Te Hunga Roia Māori o Aotearoa (Te Hunga Roia) is increasingly intervening in proceedings both as a result of Court requests to do so and off their own back. Intervention has tended to occur in cases where there is a significant tikanga issue at play (for example in Ellis v R) or in matters where Māori may have a particular interest in the decision (for example Zhang v R).16 Having an independent Māori voice in proceedings that acts as a type of kaitiaki of tikanga within the law is another tool and mechanism that I think goes towards safeguarding how tikanga is drawn on. One of the limitations here, however, is that this contribution is pro bono and therefore relies significantly on capacity and good will.
Connection to source is about ensuring fidelity to tikanga content and inserting expertise to minimise the scope for misapplication and misinterpretation. This is relevant beyond the Court context and can be extrapolated out more broadly across the legal arena. For example, the New Zealand Council of Legal Education (NZCLE) recently passed resolutions that mean that from January 2025 the LLB degree will include teaching and assessment of the general principles and practices of tikanga Māori relevant to each of the core subjects17 and a new compulsory tikanga paper taught in its own right. This will also require tikanga subject matter expertise. The implication of connection to source being important in this context is that law schools will need to appoint lecturers that have tikanga expertise or to think creatively about partnerships with Māori studies departments, with local mana whenua and with the three Wānanga.
3 Whaowhia tō kete mātauranga | Fill your basket of knowledge
This brings to me to my third point that a general and collective upskilling in the legal profession is required so that the intersection between tikanga and the law can be navigated as safely as possible.There are significant movements happening in the legal education space at the moment in regards to tikanga. Not only has the NZCLE mandated the teaching of tikanga in law schools but the Borrin Foundation has also supported a project lead by Māori legal academics to develop guidance on the “how” to transform education in a manner that embraces the first laws of Aotearoa New Zealand: Māori law”.18 There have also been significant developments in the judicial education space over the last 10 years. In addition to tikanga content being expected at most judicial seminars, the annual three-day tikanga wānanga usually held at Te Puea Marae has become a mainstay in the upskilling of judges and all new members of the judiciary are expected to attend. Further, Te Kura Kaiwhakawā (the Institute of Judicial Studies) has been working closely with Awanuiārangi (a wānanga based in Whakatane) to create a new post-graduate diploma in tikanga law that is expected to be offered to the judiciary in 2023. More needs to be done for existing practitioners that do not have this grounding.
I think the key thing to appreciate is that the purpose of this upskilling is not for lawyers or judges to become tikanga experts. That is likely both impossible and undesirable. What is needed is sufficient training and insight into tikanga and its nature for lawyers (and judges) to understand the limits of their own knowledge. The hope (at least from my perspective) is that gaining an insight into tikanga will go some way towards lawyers and judges having the skills and an instinct to identify not only where tikanga might be relevant but also how to approach it, when it is.
As we embark on what will be a new educational journey for many, the well-known idiom that a little knowledge can be a dangerous thing must be kept in mind. I think that is particularly true in respect of tikanga. It is easy to become falsely overconfident about expertise and the ability to argue and apply tikanga based on a small amount of knowledge about it. Let’s not be those people.
18 For example see Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree – Phase One: Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga) available at Borrin Foundation “Inspiring new Indigenous legal education for our LLB degree” <www.borrinfoundation.nz/ wp-content/uploads/2020/08/Inspiring-National-Indigenous-Legal- Education-Phase-1-Report.pdf>.
4 Toitū te tikanga tūturu | See tikanga on its own terms
I think that one of the challenges of tikanga being considered in a state law context is that there will be occasions where there are differences and tension points between tikanga and the common law that will need to be worked through. There is a risk that in this process, that there may be a gravitation towards those aspects of tikanga that converge with and look most familiar to common law values, at the expense of tikanga.For example, the concept of mana is deeply complex and not all aspects of it may align with liberal Western democratic values. There is a dimension to mana that is based on genealogical birthrights and not meritocracy. Whilst skills and talents are important and relevant to one aspect of mana, mana is also connected to whakapapa and there are rights and obligations associated with, for example, being a tuakana (first born) compared with younger siblings. Is this the type of aspect of tikanga that the state legal system conveniently ignores?
My point is that it is easy to glorify and romanticise certain parts of tikanga. But what about those aspects of it that the state legal system might not like? For example, the practice of claiming and taking a tūpāpaku (deceased body).19 Will we let “mana” mean “mana” or will it be watered down to merely meaning “reputation”? If we are embarking on a journey of bringing two legal systems together, to what extent do we measure tikanga up against and only apply it to the extent it aligns with a Eurocentric yardstick?
I do not think there is any easy answer to this issue. However, the words of caution posited by the High Court in Ngāti Whātua Ōrakei are relevant:20
[One] reason for caution derives from the inherently difficult task of transcending culturally-specific mindsets. In recognising tikanga, common law courts must hold “in check closely” any unconscious tendency to see tikanga in terms of the English law heritage of New Zealand common law. They must be open to seeing tikanga on its own terms, as a distinct framework.
I would suggest that the importance of seeing tikanga on its own terms is partly why the education piece is so important – so that there is an appreciation of tikanga not as a menu from which nice sounding concepts such as guardianship can be plucked out and fancied in isolation. Instead, my hope is that through this upskilling people will at least gain a high- level understanding that tikanga is a complex system of law comprised of interwoven principles, rules and precedents. This understanding may go towards guarding against oversimplification or the tendency to equivocate in an undermining fashion.
law and appearing in various Court forums, even when these spaces have been hostile to Māori interests. However, separate to the state legal system trajectory and its increasing recognition of tikanga is the revitalisation and revival of te reo Māori, matauranga Māori and tikanga Māori that is occurring. We now have kōhanga reo, kura kaupapa and wānanga graduates (amongst others) that are grounded in te ao Māori, fluent in te reo and staunchly embrace and celebrate their Māori identity.
Given this revitalisation I think that one of the matters that will need to be grappled with over time is a delineation of what is appropriately dealt with by the Courts and what is (or should be) the preserve of tikanga. Although Courts have a role of determining existing rights under law – not every matter will be something that the Courts should deal with. It would be a tragedy if Courts became a primary mechanism through which tikanga is expressed and determined and Māori disputes are resolved. As Māori redevelop, rebuild and regain confidence in their own institutions and processes, these will hopefully be seen as preferable forums for dispute resolution.
Further, there may be instances where even if issues come before Courts where it is appropriate for them to defer to tikanga or tikanga processes. For example, Palmer J in Ngawaka v Ngāti Rehua-Ngatiwai ki Aotea Trust Board (No 2) recognised that:21
Tikanga Ngāti Rehua-Ngātiwai ki Aotea lies at the heart of this dispute. That very description demonstrates that the relevant tikanga belongs to, and perhaps even constitutes, Ngāti Rehua-Ngātiwai ki Aotea. The common law recognises tikanga and its binding force on those subject to it. But a court does not determine, create or change tikanga. The relevant iwi or hapū does that.
The Court went on to accept that having an external arbiter determining whakapapa would be inconsistent with tikanga. Instead, kaumatua were encouraged to meet to discuss whakapapa and if a decision could not be made – to determine a tikanga consistent process to achieve that. The Court deferred a tikanga matter to a tikanga-based process. Palmer J in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) also made the comment that:22
Tikanga-consistent dispute resolution process must be preferred to non-tikanga consistent court resolution of disputes about tikanga. But it follows from tikanga being part of New Zealand law that, if tikanga- consistent resolution of a dispute about tikanga is not feasible, then recourse to a court may be appropriate as a matter of law. It would be a brave court that attempts to reconcile or prioritise tikanga that truly differs between iwi or hapū, especially if that reconciliation is not tikanga-based.
Although Courts will not always be able to defer tikanga issues to tikanga processes, consideration should be given to whether there is scope to defer certain matters to tikanga or encourage tikanga-based resolution. There may also be a future where we move to a conflict-of- laws-based scenario to decide jurisdiction and which dispute resolution forum (Courts or tikanga) is most appropriate.
Kupu Whakakapi | Conclusion
I think we are at an exciting point in the history of our nation where the Courts are really grappling with the extent to which they are engaging in a nation-building project that draws on our two laws to chart an appropriate course forward for Aotearoa. But the conditions are difficult and the trajectory of how the intersection and recognition of tikanga is navigated in the legal sphere does not come without risk.One of the questions that certainly keeps me awake at nights is whether as a lawyer operating in the state legal system and advancing argument in the limited legal forum that is the Court, I am simply a well-meaning conspirator in a greater assimilation and colonisation process. This is a question that I know many Māori lawyers grapple with. Where I have personally landed with that issue is that I do not think that advancing change in the state legal system and the quest for greater constitutional transformation are mutually exclusive. It is necessary for both projects to be pursued simultaneously. The influence of the state legal system on the lives of Māori is also pervasive. The converse of tikanga being relevant and recognised in this space is irrelevance. I think that is undesirable. However, I also consider that this is a question that we should all individually and as a nation be constantly revisiting depending on progress. Because whether it is a good idea for tikanga to be increasingly cognisable in Court and drawn on in the state legal system will totally depend on how we do it and whether we as a collective legal profession operate responsibly in navigating this intersection.
If I come back to the title of my lecture my question to you is: when tikanga comes your way (and it likely will if you as students stay in the law) what are you going to do to protect the integrity of tikanga? I am hoping you all leave this korero with at least a small appreciation of the significance and importance of that question.
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URL: http://www.nzlii.org/nz/journals/OtaLawRw/2022/2.html