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University of Otago Law Theses and Dissertations |
Last Updated: 17 September 2023
Do New Zealand Courts Regard Tikanga Māori as a Source of Law Independent of Statutory Incorporation? Or is Anglo-inspired Common Law Still “the sole arbiter” of Justice in New Zealand?
A dissertation submitted in partial fulfilment of the degree of the Bachelor of Laws (Honours) at the University of Otago – Te Whare Wananga o Otago
11 October 2013
Acknowledgements
To my supervisor, Dr Jacinta Ruru, for your encouragement, expertise, kindness and cockle chowder;
to my best friends and flatmates, for dealing with a whole lot of crazy;
to the inhabitants of 9N12, a veritable enclave of nerdiness and excellent human beings (particularly Phoebe, for redacting the worst of my self-indulgent verbosity, and Mel, for always being on the same wavelength);
to the Law Library staff, for their invaluable knowledge, assistance and patience; and to my family, the reason and motivation for all that I do.
Table of Contents
Do New Zealand Courts Regard Tikanga Māori as a Source of Law Independent of Statutory Incorporation? Or is Anglo-inspired Common Law Still “the sole arbiter” of Justice in New Zealand?1
Introduction
Contrary to the popular assumption that we are living in a post-colonial world free from ethnocentric laws or cultural bias, there is good reason to believe that New Zealand’s legal system has only undergone “partial decolonisation.”2 There is also good reason to question this status quo. New Zealand currently possesses two legal systems: “the institutionally dominant system of state law,” and the long-subordinate system of tikanga Māori, which “does not sit comfortably within the Western conceptual framework of law, rights and obligations.”3 Legal positivist theory and practice has relegated tikanga to “a mechanism of social regulation” external to “the rubric of settler law.”4 Māori customary laws and values indubitably play “a relevant and meaningful role in people’s lives” in a purely extra-legal realm.5 But is this auxiliary status enough? Does it satisfy the Crown guarantees made to Māori in the Treaty of Waitangi? Moreover, given the recent judgment of the Supreme Court in Takamore v Clarke,6 is this status even accurate?
The seminal text on New Zealand’s legal history cites “a growing recognition of Māori customary law” as one of several “encouraging trends” in the realm of legal interaction with Māori.7 However, last republished in 2001, this tome remains silent
1 Wi Parata v Bishop of Wellington SC 1877 3 NZ Jur (NZ) 72 [Wi Parata] at 78 per Prendergast CJ.
2 John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” (2008) 12 Journal of Pacific Law 56 at 62.
3 Nicole Roughan “The Association of State and Indigenous Law: A Case Study in 'Legal Association'”
(2009) 59 UTLJ 135 at 143.
4 Carwyn Jones “Whakaeke I Ngā Ngaru – Riding the Waves: Māori Legal Traditions in New Zealand Public Life” in Lisa Ford and Tim Rowse (ed) Between Indigenous and Settler Governance (Routledge, New York, 2013) 174 at 178.
5 Natalie Rāmirihia Coates “Me Mau Ngā Ringa Māori I Ngā Rākau A Te Pākehā? Should Māori Customary Law be Incorporated into Legislation?” (LLB (Hons) Dissertation, University of Otago, Dunedin, 2009) at 8. See also Dawson, above n 2, at 59-60, who notes that Māori customary values have continued relevance beyond the state legal system, dictating outcomes in “Māori-controlled environments, and in the use of some natural resources.”
6 Takamore v Clarke [2012] NZSC 116 [Takamore].
7 Richard Boast “Māori and the Law, 1840-2000” in Peter Spiller, Jeremy Finn and Richard Boast (ed)
A New Zealand Legal History (2nd ed, Brookers Wellington, 2001) 123 at 185. And yet, this chapter
on the latest precedents from New Zealand’s judiciary. In Takamore, the Supreme Court denounced the “false antithesis” held to exist between “pure common law” and tikanga Māori,8 with Elias CJ asserting that “Māori custom according to tikanga is... part of the values of the New Zealand common law.”9 Taking this (purportedly) potent precedent as its springboard, this dissertation will examine the fluctuating judicial stance towards Indigenous legal traditions throughout New Zealand’s legal history. Chapter One delves into colonial legal history to examine the place of Māori customary law in New Zealand’s constitutional canon, both in terms of statutory recognition and judicial treatment. Chapters Two and Three scrutinise how contemporary case law has incrementally elevated the legal status of tikanga Māori, with the latter chapter focusing solely on the implications of Takamore. Finally, Chapter Four identifies legal positivism and parliamentary sovereignty as the foundational canons of New Zealand common law, and concludes that these Anglocentric precepts are insurmountable ideological limitations to the common law recognition of tikanga Māori within New Zealand.
A Taxonomy: What is Tikanga Māori?
“An historic constraint on the discovery of Māori law has been the opinion that Māori did not have one.”10
It is no longer tenable to deny that pre-contact Māori society was governed by law, custom, or the closest Māori equivalent, tikanga.11 And yet, according to Moana Jackson, numerous scholars have been loath to treat this Indigenous law seriously.12 According to Richard Boast, this unfortunate state of affairs is attributable to “the narrow positivism that has characterised not only the practice but the teaching of law in this country.”13 New Zealand’s parochial Eurocentric legal stance conceives of law as “inherently linked to authoritative state institutions”, and thus dismisses Māori
was a largely land-centred study of the historical interactions between Māori and the law of the state of New Zealand.
8 Takamore, above n 6, at [92].
9 At [94].
10 E. T. Durie “Custom Law: Address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 VUWLR 325 at 326.
11 Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2009) at 15. 12 Moana Jackson The Māori and the Criminal Justice System: He Whaipaanga Hou: A New Perspective (Department of Justice, Wellington, 1988) at 35.
13 Boast, above n 7, at 125.
customary law as a decentralised social system “more appropriately described as ‘lore’ and not ‘law’.”14
It has not always been thus. “Untroubled by later jurisprudential theory” emanating from Austin and Dicey,15 discerning 19th-century emigrants to New Zealand keenly observed the minutiae of Māori society and “had no difficulty in characterising what they saw as manifestations of the phenomenon of law.”16 Edward Shortland, for example, was a celebrated author and regional sub-protector of Aborigines during his time in New Zealand, and an avid student of Māori custom.17 Lauded by modern historians as perhaps “the first anthropologist of Māori,” 18 Shortland made the following comments on the Indigenous dedication to native history and law:19
... the more important families of a tribe are in the habit of devoting one or more of their members to the study of this traditionary knowledge, as well as to that of their “tikanga” or laws, and the rites connected with their religion. Persons so educated are their books of reference, and their lawyers.
These perceptive understandings have been augmented by a burgeoning modern literature on the content of Māori law,20 the recognition of the minute books of the Native Land Court as the “richest written source” of customary law,21 and the partial statutory incorporation of Māori customary law.22 Moreover, the emphatic judicial re- recognition of Māori customary law corroborates the legal relevance of tikanga Māori. So, what do these phrases actually mean?
14 Coates, above n 5, at 5.
15 See John Austin Lectures on Jurisprudence or the Philosophy of Positive Law (3rd ed, J. Murray, London, 1869); A V Dicey Introduction to the Study of the Law of the Constitution (8th ed, Macmillan, London, 1931).
16 Boast, above n 7, at 126.
17 Atholl Anderson “Shortland, Edward” (30 October 2012) The Dictionary of New Zealand Biography: Te Ara - the Encyclopedia of New Zealand
<http://www.TeAra.govt.nz/en/biographies/1s11/shortland-edward>.
18 Anderson “Shortland, Edward.”
19 Edward Shortland The Southern Districts of New Zealand: A Journal (Longman, Brown, Green and Longmans, London, 1851) at 95. See also, on the concept of Māori “legal proceedings for damages,” Edward J Wakefield Adventure in New Zealand (John Murray, London, 1845) at 108.
20 For an initiation into this vast topic, see Law Commission, above n 11, at chapter 3; Māmari Stephens and Mary Teresa Boyce (ed) He Papakupu Reo Ture: A Dictionary of Māori Legal Terms (LexisNexis NZ, Wellington, 2013); Jacinta Ruru and Joe Williams (ed) Te Akinga: A Brookers Māori Law Treatise (Brookers NZ, 2014) (forthcoming).
21 Boast, above n 7, at 127.
22 See the Resource Management Act 1991, ss 2(1) (definitions of kaitiakitanga, mana whenua, tangata whenua, taonga raranga, tauranga waka and tikanga Māori), 6(e), 7(a), 14(3)(c) and 39(2)(b).
Tikanga Māori may be simply described as “essentially the Māori way of doing things
– from the very mundane to the most sacred or important fields of endeavour.”23 It embodies both “the rules maintaining order and the reasons or values underpinning those norms.”24 Far broader than positive law, these rules are united by having satisfied the threshold of tika.25 Māori customary law comprises the body of “values, standards, principles or norms to which the Māori community generally subscribed” for self-governance.26 While subject to regional variation, Sir Eddie Durie asserts that these “grass-roots” pan-tribal protocols were sufficiently “common” and “settled” to constitute ‘law.’27
Sharing many foundational principles, Māori customary law and tikanga would appear to be synonymous. 28 This notion accords with the “culturalist” and “anthropological” concept of law, one which recognises “self-contained systems of social rules and processes” as valid law, irrespective of whether or not they are generated by a superordinate institutional authority.29 Indeed, Māori in the colonial epoch would have understood tikanga to mean a formal body of law as well as moral norms, given Governor FitzRoy’s widely-circulated project: William Martin CJ’s 1845 translation of English law (“tikanga a te Pakeha”) into Māori.30
However, Carwyn Jones warns against conflating tikanga with Māori customary law. Jones’ caveat lector concedes that “Māori legal traditions are based around a system
23 Joe Williams He Aha Te Tikanga Māori (paper presented to the Law Commission, 1998) at 2 as cited in Law Commission, above n 11, at 16. See also the Te Ture Whenua Māori Act, s 4, which exhaustively defines tikanga Māori as “Māori customary values and practices.”
24 Andrew Erueti “Māori Customary Law and Land Tenure: An Analysis” in Richard Boast and others
Māori Land Law (2nd ed, LexisNexis NZ, Wellington, 2004) 41 at 41. According to the Law Commission, above n 11, at 16-17, tikanga can be spatially mapped as a spectrum – ranging from ethical values to rules of law.
25 “Purity or correctness”: Roughan, above n 3, at 143.
26 E.T. Durie “F.W. Guest Memorial Lecture 1996: Will the Settlers Settle? Cultural Conciliation and Law” (1996) 8 OLR 449 at 452. Eddie Durie is a former Chief Judge of the Māori Land Court, Chairman of the Waitangi Tribunal, Law Commissioner and Justice of the High Court of New Zealand. 27 Durie, above n 10, at 340.
28 Hirini Moko Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, 2003) at 12 lists whanaungatanga, manaakitanga, mana, tapu, utu, and aroha (inter alia); Jones, above n 4, at 174.
29 Richard Boast “Māori Customary Law and Land Tenure” in Richard Boast and others Māori Land Law (LexisNexis NZ, Wellington, 2004) 21 at 22-28.
30 William Martin Ko Nga Tikanga a te Pakeha (I Taia ki te Perehia Kawana, Akarana, 1845).
of tikanga” or “the right way of doing things.”31 Yet he distinguishes the two concepts because tikanga is “historically emergent” and has “adapted in the course of its encounter with settler colonialism” so as to maximise the potential for Māori autonomy.32 I disagree with this implicit categorisation of customary law as “static and therefore, as past law,” and prefer the conclusion of now retired Justice Durie, who defends the legal status of Māori customary law by analogy with the common law. If the “vibrancy of the common law is not diminished by its customary origins”, why should the “vitality and flexibility” of Māori custom be thus constrained?33 There is a certain affinity between the two legal systems, given their shared dynamism and subscription to a collection of overarching, fundamental values.34 Māori customary law, too, is “historically emergent”, and cannot be differentiated from tikanga on this basis.
There is no consensus among Māori as to the synonymity of Māori customary law and tikanga Māori, and alternative views permeate the scholarship.35 Although the two concepts are not necessarily identical, nor are they binary opposites. Within the Māori legal system, it is unnecessary to distinguish between tikanga as legal obligations and tikanga as moral values or virtues.36 In keeping with this broad traditional conception and the linguistic fusion recently adopted by the Supreme Court in Takamore,37 the terms ‘Māori customary law,’ and ‘tikanga Māori’ are used interchangeably in this dissertation.
B Parameters
Given the existing legal,38 historical,39 sociological,40 and cultural41 scholarship on the general field of Māori customary law, I have refined my research focus to concentrate
31 Jones, above n 4, at 174.
32 At 175.
33 Durie, above n 10, at 327.
34 At 331.
35 Durie, above n 26, at 456.
36 Roughan, above n 3, at 143-144.
37 Takamore, above n 6, at [95] per Elias CJ.
38 See Paul McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Oxford, 1991); Mark Hickford Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (Oxford University Press, Oxford, 2011); Boast, above n 29.
39 Alan Ward A Show of Justice: Racial "Amalgamation" in Nineteenth Century New Zealand
(Auckland University Press, Auckland, 1995).
specifically on the common law treatment of tikanga Māori. This dissertation therefore will not “delve back into history to establish the pedigree of the New Zealand Parliament” in the interests of challenging or resolving “[an] assumed clash of sovereignties.”42 Nor will it dwell upon the statutory treatment of Māori customary law.43 Furthermore, as the Law Commission has written on the content of Māori legal tradition and custom,44 this study will not be a work of “lego-anthropology.”45 Given the 21st-century appellate authorities of Attorney-General v Ngāti Apa 46 and Takamore, what needs deeper scholarly scrutiny is the current judicial penchant for recognising Māori customary law as an integral part of the common law of New Zealand. This dissertation aims to connect New Zealand’s colonial past with our post- “breakthrough era” present,47 thereby highlighting the continuing colonisation of our legal system.
40 Peter Karsten Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora – The United States, Canada, Australia and New Zealand, 1600-1900 (Cambridge University Press, Cambridge, 2002). Although see Paul McHugh Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford University Press, New York, 2004) at 26-27, who critiques Karsten’s “non-statist, pluralistic conception of ‘law’” as “an over- inclusive, under-discriminating one that does not penetrate (or historicise) the pre-modernist view.”
41 See generally Durie, above n 26; Moana Jackson “Justice and Political Power: Reasserting Maori
Legal Processes” in Kayleen M Hazelhurst (ed) Legal Pluralism and the Colonial Legacy (Avebury, Aldershot, England, 1995) 244; Ani Mikaere “Tikanga as the First Law of Aotearoa” (2007) Yearbook of New Zealand Jurisprudence 24.
42 Berkett v Tauranga District Court [1992] 3 NZLR 206.
43 Given New Zealand’s steadfast commitment to the doctrine of parliamentary sovereignty, and the unfettered power of the legislature to dictate Māori affairs, statutory incorporation (or suppression) of Māori customary law is indubitably important. However, this subject has recently been admirably treated by Natalie Coates and is therefore beyond the ambit of my research: Coates, above n 5. See also Boast, above n 7, at 184.
44 Law Commission, above n 11. See also David Richardson Benton, Alex Frame and Paul Meredith A
Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013).
45 This term has been adopted from Durie, above n 26, at 456. These legal-historical landscapes have
been heavily tilled, and would distract (and detract) from my core research question: the true extent of legal pluralism in New Zealand.
46 Attorney-General v Ngāti Apa [2003] NZCA 117; [2003] 3 NZLR 643 [Ngāti Apa].
47 For an explanation of the “breakthrough era,” see Paul McHugh Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford University Press, Oxford, 2011) at 3. McHugh describes the evolution of a “cross-jurisdictional meta-jurisprudence” of common law Aboriginal rights which swept through North America and Australasia, bookended by the landmark judgments of Canada's
Calder v Attorney-General of British Columbia [1973] SCR 313 [Calder] and Australia's Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (HCA) [Mabo]: McHugh at 5.
Chapter I: To What Extent was Māori Customary Law Recognised in Colonial New Zealand?
Upon ‘discovery,’ the colony of New Zealand was decidedly not a legal tabula rasa. Prior to the transplantation of English law into New Zealand, Māori society was governed by Indigenous laws and customs.48 Crown government did not encounter “a legal vacuum, unfilled until the exercise of the constituent power.”49 Nor, upon cession of sovereignty, did Indigenous law vanish into the ether. According to the common law doctrine of continuity, customary law survived the formal annexation of 1840, provided it was not contrary to clearly expressed legislation or repugnant to universal tenets of morality.50 While the applicability of English law to Māori tribes was fervently debated, the reality was that in many areas, English law was unknown, unenforced, and unenforceable.51 For most of the 19th century, in certain locales, tikanga Māori was the only legal system in operation.52 But what of its de jure status? Did the colonial courts view Māori customary law as a sui generis source of law, independent of statutory incorporation?
Throughout New Zealand’s legal history, both specific legislation and the common law have allocated a carefully-delineated domain to Māori customary law in areas as diverse as Native title, fishing rights, and (most recently) burial customs. John Dawson thus correctly phrases the issue, in clarifying that scholars and judges are discussing the “re-recognition of Māori customary law,”53 rather than the exhumation of a hitherto unrecognised legal system. In a similar vein of re-acknowledgement, this chapter will explore New Zealand’s colonial legal history, and reveal the substrata of
48 English Laws Act 1858 (UK) 21 & 22 Vict c 2, s 1. This legal injection was enabled by the alleged cession of Māori sovereignty to the Crown in the Treaty of Waitangi: see Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561; (1901) NZPCC 371 (PC); Hoani Te Heuheu Tukino v Aotea District Māori Land Board [1941] AC 308. For closer scrutiny of this assumed “fact” of legal history, see Paul Moon The Path of the Treaty of Waitangi: Te Ara Ki Te Tiriti (David Ling Publishing, Auckland, 2002) at 10.
49 McHugh Māori Magna Carta, above n 38, at 83.
50 Compare New Zealand Constitution Act 1852 15 & 16 Vict c 72, s 71. This provision enabled Aboriginal “laws, customs, and usages” to govern inter-Māori affairs, “so far as they are not repugnant to the general principles of humanity.” These conditions also informed the doctrine of Native title.
51 McHugh Aboriginal Societies, above n 40, at 180. For more on de facto tribal sovereignty and autonomy in the 19th century, see also James Belich The New Zealand Wars and the Victorian Interpretation of Racial Conflict (Auckland: Auckland University Press, 1986) at 298-310; Nan Seuffert Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Ashgate, Aldershot, UK, 2006) at 32.
52 McHugh Aboriginal Societies, above n 40, at 180-181.
53 Dawson, above n 2, at 62 (emphasis added).
tikanga Māori which the arriviste imperial authorities long upheld as governing Māori society.
A An Early Constitutional Skeleton
English laws were deemed to have been in force in New Zealand from 14 January 1840, at least “so far as applicable to the circumstances of the... colony.” 54 Retrospectively, therefore, the advent of English law “pre-dated the Treaty of Waitangi, the proclamation of sovereignty and effective settlement.”55 However, the English Laws Act 1858 did not explicitly displace Māori law or decree that only English law applied. Indeed, now retired Justice Durie asserts that if its usage would “prejudice existing Māori interests arising by Māori law,” English law was arguably inapplicable to colonial circumstances.56 This was apparently the stance adopted by the New Zealand Supreme Court in Baldick v Jackson, where Stout CJ held that the Crown’s right to recover whale carcasses was inapplicable to the circumstances of the colony in view of Māori custom and the Treaty’s assumption that “[Māori] fishing was not to be interfered with.”57 This precedent suggests that a New Zealand statute was not necessary to preserve this customary whaling right.58
To ask precisely when Māori understood this Anglo-import legal system is to assume either that “Māori had blank minds awaiting intelligence, or were willing to jettison their beliefs for an alternative regime.”59 The annals of history, however, reveal otherwise. Māori signatories of the Treaty of Waitangi were not amenable to the exclusive imposition of English law, but were adamant that their own laws would be respected.60 Nor had the Treaty anticipated “a mono-legal regime.”61 Indeed, the covenant in the Māori version of te Tiriti is “more properly understood” as establishing a bipolar “power-sharing” arrangement, enabling Māori retention of
54 English Laws Act, s 1.
55 Durie, above n 26, at 459.
56 At 460.
57 Baldick v Jackson (1910) 30 NZLR 343 at 345.
58 Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC) [Te Weehi] at 689 per Williamson
J. However, Baldick v Jackson stands in stark contrast to Stout CJ’s subsequent ruling in Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065, which denied the existence of Māori customary rights without prior statutory conferral.
59 Durie, above n 26, at 456.
60 At 460.
61 At 459.
“parallel control over Māori land and people.”62 Even if the second article guarantee of te tino rangatiratanga was “no more than an assurance that the Chiefs’ cession of sovereignty would not displace their customary law,” qualified legal pluralism was “an expected outcome” of British sovereignty.63
This interpretation is corroborated by initial Colonial Office policy, which denied any intention of ruling over Māori, 64 and recognised continued Indigenous self- governance. 65 Moreover, the “fourth article” of the Treaty conveyed Governor Hobson’s verbal assurance to Māori that “[the] Queen will not interfere with your native laws or customs.”66 According to the doyenne of Treaty historiography, Dame Claudia Orange, this “verbal commitment” would have ultimately “amounted to very little.”67 Durie, however, argues that in treaties entered with Indigenous peoples of oral tradition, influential American precedent affirms that verbal and written promises are to be afforded equal weight.68 Thus the Treaty cannot be upheld as the progenitor of a purely English law in New Zealand, but rather, as “authority for the proposition that the law of the country would have its source in two streams.”69
B Official Colonial Policy
Once this “so-called treaty of cession” had established Crown imperium,70 colonial officials were faced with an immediate quandary: to what extent were Māori governed by English law? Given the state’s dearth of resources, and the great imparity of settler and Māori populations, the question of jurisdiction and enforcement was largely “a theoretical problem.”71 Nevertheless, this issue divided official opinion. Acting-Governor Edward Shortland believed that as the nation was British territory,
62 Seuffert Jurisprudence of National Identity, above n 51, at 31.
63 McHugh Māori Magna Carta, above n 38, at 86.
64 Seuffert Jurisprudence of National Identity, above n 51, at 31.
65 Alex Frame “Colonising Attitudes Towards Māori Custom” [1981] NZLJ 105 at 105-109.
66 Boast, above n 7, at 132.
67 Claudia Orange The Treaty of Waitangi (Allen & Unwin, Wellington, 1997) at 53. Compare Law Commission, above n 11, at 72-74 (and citations therein).
68 Durie, above n 26, at 460.
69 At 461.
70 Jacinta Ruru “Asserting the Doctrine of Discovery in Aotearoa New Zealand: 1840-1960s” in Robert J Miller, Jacinta Ruru, Larissa Behrendt and Tracey Lindberg Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, New York, 2010) 207 at 207.
71 Boast, above n 7, at 136.
all Māori were subject to English law.72 Conversely, Attorney-General William Swainson believed that Māori who had not signed the Treaty were independent of the Crown.73 In June 1843, New Zealand Company settlers and Ngāti Toa clashed over disputed land in the fertile Wairau Valley.74 Hostilities and property-destruction degenerated into internecine fighting, resulted in twenty-six fatalities, and left Māori- European relations “badly shaken.”75 Following the Wairau affray, Swainson declared the “now well known” fact that even Māori signatories:76
... had not the most remote intention of giving up their rights and powers of dealing, according to their own laws and customs, with the members of their own tribes, or of consenting to be dealt with in all cases according to our laws.
Reminiscent of British Canadian policy during the Royal Proclamation era, Swainson’s “Marshall-like notion of a subsisting and limited tribal sovereignty” was ultimately vetoed by London.77 Spurred on by the humanitarian lobby in Westminster, the Colonial Office maintained that Māori interests would be best protected by Crown sovereignty and its handmaiden: English law.78
George Clarke, Chief Protector of Aborigines, and James Stephen, Colonial Under- Secretary, epitomised such paternalistic ‘beneficence’. Clarke urged the incremental extension of British law by convincing Māori chiefs of its superiority.79 Stephen asserted that English law ought to be selectively applied, unhindered by either “the spirit of legal pedantry” or “the contempt and aversion with which the European race
72 Boast, above n 7, at 137.
73 McHugh Aboriginal Societies, above n 40, at 168.
74 Ministry for Culture and Heritage “The Wairau Incident” (20 December 2012) NZHistory Online
<http://www.nzhistory.net.nz/wairau-incident>.
75 Mark Derby “Māori–Pākehā relations -Military conflicts” (15 November 2012) Te Ara - The Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/artwork/28561/wairau-affray-1843> .
76 Letter from William Swainson (Attorney-General) to Edward Shortland (Acting Governor) regarding
whether Māori chiefs could be deemed to have given their “intelligent consent” to the Treaty of Waitangi, and thus be governed solely by English law (27 December 1847) as cited in McHugh Aboriginal Societies, above n 40, at 169.
77 McHugh Aboriginal Societies, above n 40, at 169. The eponymous “Marshall” notion refers to the
celebrated “Indian trilogy” of Johnson v McIntosh [1823] USSC 22; 21 US 543 (1823); Cherokee Nation v Georgia [1831] USSC 6; 30 US 1 (1831); and Worcester v Georgia [1832] USSC 39; 31 US 515 (1832). Issued in the latter part of Marshall’s tenure as Chief Justice of the Supreme Court of the United States, these three precedents have been beatified for their endorsement of “tribal quasi-sovereignty,” and touted as the legal prototype for dealing with Indigenous customs in other jurisdictions: Peter D’Errico “John Marshall: Indian Lover?” (2000) 39 Journal of the West <http://www.umass.edu/legal/derrico/marshall_jow.html> .
78 McHugh Aboriginal Societies, above n 40, at 168-169.
79 Boast, above n 7, at 137.
everywhere regard the Black races.”80 Stephen affirmed that English law is introduced to a colony only to the extent that local circumstances allow, and that Māori should abide by their own law.81
This brief survey of colonial opinion reveals that, in the colony’s formative years, no official consensus existed as to what the legal status of tikanga Māori ought to be. For many settler bureaucrats, “a legal presumption arose that when English law came in, Māori law was displaced unless... specifically provided for.”82 Popular historians, too, have long clung to this myth.83 However, the common law doctine of continuity presumed the survival of Māori customary law, subject to certain conditions.
C Continuity of Indigenous Legal Traditions
Upon the Crown’s acquisition of sovereignty, the status of Indigenous customary law was initially contingent on the common law. Faced with two possible responses, either the ipso jure truncation or conditional continuity of the Indigenous legal regime, the common law opted for the latter. The doctrine of continuity recognised that “British sovereignty... of itself did not make legal order from chaos, but rather, extended some legal recognition to the pre-existing tribal system of government and law.”84 Paul McHugh asserts that this mandate has “a certain inevitability,” as continuity is “a deep-seated trait of human nature.”85 Individuals do not switch their allegiance and adherence to legal systems quite so easily.
80 James Stephen, Minute (26 February 1846) as cited in McHugh Māori Magna Carta, above n 38, at 93.
81 Letter from James Stephen (Colonial Under-Secretary) to George Hope (Parliamentary Under-
Secretary) regarding the conditional continuity of Māori laws and customs (28 December 1843) as cited in McHugh Māori Magna Carta, above n 38, at 93. However, Stephen’s codicil excluded the recognition of “such customs... as are abhorrent from the universal laws of God.” Note the similarities between this terminology and the phrasing of the English Laws Act, s 1.
82 Durie, above n 26, at 459.
83 See, for example, N.A. Foden New Zealand Legal History (1642-1842) (Sweet & Maxwell, Wellington, 1965) at 24-25 and 179-190; Ward, above n 39; Peter Adams Fatal Necessity: British Intervention in New Zealand, 1830-1847 (Auckland University Press, Auckland, 1977) at chapter 7. 84 McHugh Māori Magna Carta, above n 38, at 83.
85 At 84. The immediate suspension of the native legal system would therefore be a “surprising” outcome of colonisation.
In the early 17th century, The Case of Tanistry86 settled the legal impact of British sovereignty upon the pre-existing system of Irish customary law (brehon). The court held that indigenous laws survived sovereignty, provided they satisfied requirements of reasonableness, certainty, immemorial usage and compatibility with the royal prerogative.87 In the same year, Sir Edward Coke’s report of Calvin’s Case asserted that “[the] laws of a conquered Christian nation survived, but the laws of an infidel nation were abrogated ipso jure.”88 Before the settlement of New Zealand, however, Lord Mansfield had denounced Coke’s “strange, extrajudicial opinion,”89 clarifying that Indigenous laws deserved the same presumption of continuity as established in The Case of Tanistry.90
By the mid-19th century, then, the common law unequivocally stated that the importation of English law to a colony did not automatically displace pre-existing laws. When the Crown acquired territory governed by a highly developed, documented legal system, “the need to ‘modify’ the local law (lex loci) was non- existent.”91 Meanwhile, in tribal territories, a modified continuity enabled the Crown to assume a protective, intermediary role between settler and Indigenous communities.92 Although “legal pluralism of a character approaching a measure of rangatiratanga never eventuated,” Māori customary law retained its pre-contact status (at least in proprietary and civil matters).93 In the colonial period, tikanga Māori could be ousted only by Act of Parliament.
D Legislating Custom: The 1840s
86 The Case of Tanistry (1608) Davies 28, 80 ER 516 (KB).
87 McHugh Māori Magna Carta, above n 38, at 87.
88 Calvin’s Case (1608) 7 Co Rep 1a, 77 ER 377 (Comm Pleas).
89 Campbell v Hall [1774] EngR 5; (1744) 1 Cowp 204, 98 ER 1045, Lofft 655[1790] EngR 1905; , 98 ER 848 (KB). Although Lord Mansfield’s ‘incontrovertible’ propositions referred specifically to conquered territories, they pertain to all colonial acquisitions, whether by conquest, cession, settlement, or usurpation.
90 McHugh Māori Magna Carta, above n 38, at 89. See the summary of these stringent requirements for legal recognition of native custom at Halsbury’s Laws of England (5th ed, 2012, online ed) vol 32 Custom and Usage at [6].
91 McHugh Māori Magna Carta, above n 38, at 86. A prime example of such unqualified continuity is the Québecois French seigneurial system.
92 At 86.
93 At 94.
But legislation was not solely a mechanism of Indigenous legal dispossession. Indeed, several notable statutes from the early colonial era explicitly recognised and affirmed the continued existence and effect of Māori law-ways.
The Native Exemption Ordinance of 1844, Governor FitzRoy’s controversial solution to the Wairau Affray, deprived police magistrates of the power to arrest Māori for criminal offences committed outside the limits of a town.94 Moreover, if the dispute involved Māori parties only, the assent of the Protector of Aborigines was a prerequisite for an arrest warrant. The Protector would then communicate with the local chiefs, who would receive compensation for acceding to criminal proceedings.95 While settlers were hostile to this ordinance, Māori chiefs “quite properly saw it as reinforcing rather than challenging their mana. To them it signified their exception rather than subjection to English law.”96 By making criminal law enforcement within Māori society contingent upon the permission of rangatira, this law implicitly recognised the emergence of discrete, parallel nations. Exempting Māori from the application of colonial laws “positioned Māori outside the jurisdictional boundaries determining the nation,” thereby allowing Māori customary law a carefully delineated sphere of operation.97
When Governor Grey replaced the increasingly unpopular FitzRoy in 1845, he immediately implemented a programme for “bringing Māori directly under the subjection of British law.” 98 This involved repealing the Native Exemption Ordinance, abolishing the Protectorate of Aborigines, and introducing coercive armed policing.99 Governor Grey also successfully lobbied the Westminster Parliament to pass the New Zealand Constitution Act 1846, which proposed that certain districts be “set apart” in which “native laws, customs, or usages should be so observed”100 and enforced in relation to Māori dealings inter se. 101 This relaxation of the rigid application of imperial legislation was an attempt to incorporate customary law into
94 Native Exemption Ordinance 1844 7 Vict 18, cl 2, 6. The offences of rape and murder were excluded from the ambit of this Ordinance.
95 Clauses 4-5.
96 McHugh Aboriginal Societies, above n 40, at 170.
97 Seuffert Jurisprudence of National Identity, above n 51, at 32.
98 Boast, above n 7, at 138.
99 At 138.
100 New Zealand Government Act 1846 (UK) 9 & 10 Vict c 103, ss 2 and 11.
101 Section 10. In its aim, this Act is not markedly different from FitzRoy’s 1844 Ordinance.
the colonial legal system. Evidently, the laws of New Zealand in 1846 included Māori “laws, customs and usages.” However, the Act was suspended, Grey’s self-professed “modifications of the British law”102 were abandoned, and the districts were never set aside.103
Much like its legislative forebears, the New Zealand Constitution Act 1852 enabled a strictly delineated bijuridicalism which was never actually implemented.104 Section 73 enabled the Governor to proclaim districts in which Māori law would continue to prevail, and s 71 read:105
It may be expedient that the laws, customs, and usages of the aboriginal (or Māori) inhabitants of New Zealand... should for the present be maintained for the government of themselves, in all their relations to and dealings with each other.
Effectively the statutory equivalent of the common law doctrine of continuity, this provision remained in force until the passage of the Constitution Act 1986. Although this power was never used, its recognition of residual tribal jurisdiction envisaged “a Marshall-like approach towards the chiefs’ authority and the internal viability of Māori custom within specified areas.”106
Throughout the 1850s, Māori laws were extinguished for their contravention of “civilised practices,”107 and the 1860s saw “the shape and the boundaries of the nation violently contested” in the New Zealand Wars.108 In the aftermath of these tumultuous decades, the applicability of British law to Māori remained unclear. The Native Rights Act 1865 expressed this contemporary uncertainty in its preamble, professing to be: “[an] Act in response to doubts about whether the colonial courts have jurisdiction in all cases touching the persons and property of the Māori people.” The
102 Letter from Governor George Grey to the Legislative Council (10 October 1846) as cited in McHugh Aboriginal Societies, above n 40, at 170.
103 Philip A. Joseph Constitutional and Administrative Law in New Zealand (Law Book Company,
Sydney, 1993) at 82-83.
104 McHugh Aboriginal Societies, above n 40, at 267.
105 New Zealand Constitution Act 1852 (UK) 15 & 16 Vict c 72, s 71.
106 McHugh Aboriginal Societies, above n 40, at 170.
107 Frame, above n 65, at 107-109.
Act “anxiously declared” the existence of such a jurisdiction over Māori. 109 Furthermore, where Native title had not been extinguished, the Native Land Courts were empowered to determine property interests according to “the Ancient Custom and Usage of the Maori people.”110
This early recognition of Maori law proved to be ephemeral. English legal institutions were widely conceived of as “innately superior,” and legal assimilation was touted as securing “the best interests of Maori.” 111 Māori customary law was therefore systematically displaced by niche statutes, 112 extensive statutory regimes, 113 and judicial decisions.
E The Volte-Face of the Common Law
Global empirical studies have altered international thinking as to the existence of Indigenous legal systems,114 but those interested in New Zealand “may be over-awed by the... weighty views from the general courts at about the turn of the century which did not conceive of any Māori polity or law.”115 Such wilful blindness did not exist ab initio. From the tacit respect for Māori customary law in R v Symonds,116 through its blunt rejection in Wi Parata v Bishop of Wellington,117 and the Privy Council’s (unheeded) countermand of such a rejection in Nireaha Tamaki v Baker,118 the colonial course of the common law has been far from smooth. Indeed, these precedents are united only by their staunch ideological commitments to the Doctrine
109 At 35.
110 Native Rights Act 1865 29 Vict c 11, s 4.
111 Coates, above n 5, at 12. Indeed, other ‘Native’ legislation of the early 1860s explicitly stratified English and Māori legal systems (intending to elevate the former). For a prime example, see the
preamble to the Native Lands Act 1862, which was intended to “greatly promote... the advancement and civilization of the Natives” by having their proprietary rights “assimilated as nearly as possible to the ownership of land according to British law.” Similarly, the preamble to the Native Land Act 1865 urges the consolidation of colonial land law, encourages “the extinction of such [Māori] proprietary customs,” and aims “to provide for the conversion of such modes of ownership into titles derived from the Crown.”
112 See the Tohunga Suppression Act 1907.
113 Coates, above n 5, at 13. Coates cites the criminal code as an example of general-level assimilation. 114 See generally the scholarship of John Borrows on Canada’s First Nations, particularly “Indigenous Legal Traditions in Canada” (Report for the Law Commission of Canada, Ottawa, 2006).
115 Durie, above n 10, at 326.
116 R v Symonds (1847) NZPCC 387.
117 Wi Parata, above n 1.
118 Nireaha Tamaki v Baker, above n 48.
of Discovery.119 Poring over these “constitutional moment cases”120 will help us to ascertain the erratic trajectory of judicial recognition of Māori legal traditions – regardless of their incorporation into statute law.
By 1844, the colonial project was mired in a political and economic crisis. Unable to purchase land and facilitate sales, the impecunious Treasury was besieged by the lobbying of land-hungry colonists and eager Māori vendors, both frustrated by the Crown’s pre-emptive right to purchase land.121 Governor FitzRoy’s solution was to waive pre-emption in March 1844, allowing direct sales to settlers in exchange for a governmental fee.122 But the Colonial Office baulked at FitzRoy’s second waiver of October 1844, which “completely destroyed the economic purpose of pre-emption” by reducing this fee to a penny per acre.123 Thus when Governor Grey succeeded FitzRoy in November 1845, he was firmly instructed to restore the right of pre- emption.124 This reversal of policy suddenly brought into doubt all titles issued under the purported waiver.
Ostensibly protecting Māori from the unlawful expropriation of their lands, R v Symonds assimilated Māori land tenure to the English property law system. Symonds was a test case in which Governor Grey orchestrated a challenge to a title effected under FitzRoy’s waiver, in order to ascertain the (in)validity of such sales. 125 Significantly, there were no Māori litigants involved; this was a dispute between settlers. The issue was whether McIntosh had acquired bona fide title directly from the Māori vendors (as endorsed by a certificate issued under FitzRoy’s purported waiver) and whether such purchase invalidated the Crown’s subsequent grant of title to Symonds.
119 For evidence of this ‘golden thread,’ see Ruru, above n 70, at 215 and 221, referring to Symonds as the first New Zealand case to rely explicitly on Doctrine of Discovery ideology and Wi Parata as “New Zealand’s paramount Discovery case.”
120 I am indebted to my supervisor, Jacinta Ruru, for suggesting this neat phrase.
121 Seuffert Jurisprudence of National Identity, above n 51, at 18; Orange, above n 67, at 103-105. 122 This “ten shillings per acre” waiver was often euphemistically referred to as FitzRoy’s “experiment.” See Michael Wordsworth Standish “FITZROY, Robert” (23 April 2009) Te Ara - the Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/1966/fitzroy-robert> .
123 Orange, above n 67, at 104.
124 At 104.
125 Seuffert Jurisprudence of National Identity, above n 51, 19.
The Supreme Court held that the Crown’s right of pre-emption could not be waived, as “the Queen is the exclusive source of title.”126 In dispensing with this pre-emptive right, FitzRoy had breached a fundamental doctrine of English common law. His Proclamations were deemed to be ultra vires, therefore the grounds for the writ of scire facias were not satisfied and Symonds’ title was upheld.127 In potent obiter on Native title, Chapman J noted that:128
... it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers.
Thus the Crown’s paramount title was burdened by the customary property rights of Māori owners. In the interests of Māori protectionism “and for the sake of humanity,” Native title could be lawfully extinguished - but only by the Queen.129 Implicitly, this “thin consensus” as to the presence and vulnerability of Native title also involved “recognition in these processes of ‘rights’ to be quieted or removed.”130 Māori customary rights, and (of necessity) the laws which girded them, were “entitled to be respected” until such time as the Crown saw fit to unequivocally extinguish them.
Symonds aligned New Zealand law with “a broader, trans-oceanic narrative” of Indigenous rights to Native title, by distilling and formally adopting “a jurisprudential literature minted and honed in the United States” as relevant to Crown-Māori relations.131 Much like the celebrated judgments of Marshall’s Court, Symonds has been the subject of considerable legal hagiography.132 Such ‘beneficent’ recognition, however, proved short-lived. Three decades later, the Supreme Court proceeded to question and undermine the very existence of Māori customary law: could Māori behavioural norms and customs constitute ‘law’? Did Māori even properly constitute
126 R v Symonds, above n 116, at 390.
127 R v Symonds, above n 116, at 398-398.
128 At 390.
129 At 390. At 391, Chapman J rationalised pre-emption as being “founded on the largest humanity” because it protected Māori from mass expropriation, and the “evil consequences of the intercourse to which we [settlers] have subjected them.”
130 Hickford Lords of the Land, above n 38, at 202.
131 At 203. For corroboration of his stance on Native title, Chapman J relied upon Cherokee Nation v State of Georgia, above n 77, as cited in Symonds, above n 116, at 390.
132 McHugh Aboriginal Societies, above n 40, at 41 writes that Symonds has been canonised in the revisionist historiography of common law Aboriginal rights, due to the legal positivists’ preoccupation
with precedent and the legal historians’ “presentist trawling of the pre-modern period for modernist insignia of law’s presence.”
a body politic? By answering both questions in the negative, the common law nullified any legal recognition of tikanga Māori.
F The Epitome of Legal Notoriety: “a simple nullity”133
A-contextually, this phrase appears relatively unobjectionable. When applied to the Treaty of Waitangi, however, these three simple words have generated such “an avalanche of adverse criticism from a multitude of commentators”134 that legal historian Grant Morris has identified Wi Parata as “the most notorious in New Zealand’s history.” 135 Condemned for epitomising “the pinnacle of free trade imperialism,”136 judicial ethnocentrism and Treaty-repudiation, this case is equally censured for its rejection of Māori customary law.137
The Ngati Toa tribe had gifted land to the Anglican Church on trust, for the purpose of erecting a school for Ngati Toa children. Given the Crown’s exclusive right of extinguishing Native title, this deed itself could not have alienated the relevant land. The issue in Wi Parata was whether the Crown grant to the Bishop of Wellington, allegedly made without the knowledge or consent of Ngati Toa, was a voidable “fraud upon the donors.” 138 Conflating imperium and dominium, 139 the Supreme Court surpassed the common law doctrine of subsisting (albeit limited) tribal sovereignty, and “relied on a new version of historical events” to deny Māori government, property rights, and customary law.140 Wi Parata held that Māori-Crown transactions were “to be regarded as acts of State,” and were therefore non-justiciable.141 This
133 Wi Parata, above n 1, at 78.
134 For a substantial inventory of these critiques, see David V. Williams A Simple Nullity? The Wi Parata Case in New Zealand Law & History (Auckland University Press, Auckland, 2011) at 2.
135 Grant Morris “James Prendergast and the Treaty of Waitangi: Judicial Attitudes to the Treaty During the Latter Half of the Nineteenth Century” (2004) 35 VUWLR 117.
136 Seuffert Jurisprudence of National Identity, above n 51, at 133.
137 See the judgment of Elias CJ in Ngāti Apa, above n 46.
138 Wi Parata, above n 1, at 76.
139 On the dichotomy between imperium (sovereignty) and dominium (absolute proprietary rights), see
Ngāti Apa, above n 46, at [26] per Elias CJ.
140 Ruru, above n 70, at 219. Although Prendergast CJ is officially listed as having authored this judgment, Richmond J may well have been his ghost-writer. After traversing the archival evidence relating to Wi Parata, David Williams convincingly concludes that “it is more than plausible” (even “highly likely”) that Richmond J wrote the infamous judgement: see Williams, above n 134, at 150. Therefore, rather than citing (or indicting) Prendergast CJ, I have chosen to attribute the Wi Parata judgment to the Supreme Court in banco.
141 Wi Parata, above n 1, at 79.
oxymoronic legal stance portrayed Māori “as though they were engaging in fact with the Crown as sovereign-to-sovereign whilst simultaneously denying them that legal status.”142 Immune from judicial review, the Crown grant was upheld.
In keeping with contemporary European notions of nationhood, and legal positivist concepts of law,143 the Supreme Court justified this conclusion by asserting that, upon colonisation, “the aborigines were found without any kind of civil government, or any settled system of law.”144 Indeed, the court hypothesised, if a cognisable legal system had existed, “the British Government would surely have provided for its recognition.”145 But in New Zealand, “the old law of the country” need not be administered to any extent, because:146
... in the case of primitive barbarians, the supreme executive Government must acquit itself... of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice.
This negation of Māori customary law was not only inaccurate, but also directly contravened statutory directions to the Native Land Court, which made explicit reference to the “Ancient Custom and Usage of the Māori people.”147 The judgment discussed the Native Rights Act 1865 with some perplexity, declaring that the Act spoke “as if some such body of customary law did in reality exist.” Yet, according to the court, “no such body of law existed.”148 This obiter “literally re-members” New Zealand’s legal history by recreating “the nation as one in which Māori laws and customs never existed.”149
142 McHugh Aboriginal Societies, above n 40, at 172. According to McHugh, this paradoxical position breached the common law rule that there could be no act of State by the Crown against its own subjects: Entick v Carrington [1765] EWHC J98; (1765) 19 St Tr 1030, 95 ER 807 (KB).
143 Williams, above n 134, at 165-166. For an example of British ideologies that coloured judicial
opinion, see Wi Parata, above n 1, at 77. The court placed significant reliance upon Lord Normanby’s qualified recognition of Māori property rights in his 1839 Instructions to Hobson, citing in particular his assessment of the Māori as: “a people composed of numerous, dispersed, and petty tribes... incompetent to act, or even to deliberate, in concert.”
144Wi Parata, above n 1, at 77.
145 At 78.
146 At 78. As McHugh noted in Aboriginal Societies, above n 40, at 125, this quote is “an unattributed paraphrase” of Johnson J’s judgment in Cherokee Nation v Georgia, above n 77, at 29: “In the exercise of sovereign right, the sovereign is sole arbiter of his own justice.”
147 Native Rights Act 1865, s 3.
148 Wi Parata, above n 1, at 79.
149 Seuffert Jurisprudence of National Identity, above n 51, at 36.
For some commentators, this circumvention of the 1865 Act is the most objectionable element of the case.150 Effectively, the judgment sidesteps the statutory incorporation of Māori customary law by holding that the Crown is not bound by the statute, as it is not named therein.151 Beyond this “technical way out,” Williams is shocked that two judges of the Supreme Court could blithely suggest that “a phrase in a statute cannot call what is non-existent into being.” 152 Williams suggests that Wi Parata characterises “a blatant refusal by judges to apply a law made by the sovereign power... that they just happen not to like.”153 Indeed, the hostile attitude of domestic courts to subsequent Māori claims stood in “stark contrast to the more sympathetic approach of the Privy Council.”154
G A More Sympathetic Approach?
In Nireaha Tamaki v Baker, the Privy Council overturned the Wi Parata reasoning, as followed by the New Zealand Court of Appeal,155 that “there is no customary law of the Maoris [sic] of which the Courts of law can take cognizance.”156 Lord Davey, delivering the judgment on behalf of their Lordships, held that “this argument goes too far, and that it is rather late in the day for such an argument to be addressed in a New Zealand Court.”157 Ultimately, their Lordships’ reversal of the Court of Appeal decision hinged on statutory recognition of Native title, not the common law recognition of Māori customary law.158 The Privy Council held that the Native Rights Act 1865 must be interpreted so as to recognise Native title until clear extinguishment occurred.159 To bypass ss 3 and 4 of the Act would be to breach “the duty of the
150 Williams, above n 134, at 172.
151 Wi Parata, above n 1, at 80.
152 At 79.
153 Williams, above n 134, at 172. To indulge in a little hypothetical legal history, the first Chief Justice of New Zealand would have roundly rejected the legal fiction of Wi Parata. Martin CJ often referred to
"native title" and regarded Māori customary land-use rights as akin to the separate regimes of Northern American Indian and Scots property law, recognising that "under the single sovereignty of the Queen of England there are many systems of law”: William Martin "Observations on the Proposal to take Native Lands under an Act of the Assembly" [1864] 1 AJHR E2c at 6 as cited in Peter McKenzie “New Zealand’s First Chief Justice: The Rule of Law and the Treaty” (2012) 43 VUWLR 207 at 228. However, Martin CJ’s stance (hypothetical or not) was not representative of Antipodean opinion.
154 McHugh Māori Magna Carta, above n 38, at 95.
155 Nireaha Tamaki v Baker (1894) 12 NZLR 482 (CA).
156 Nireaha Tamaki v Baker, above n 48, at 382.
157 At 382.
158 Ruru, above n 70, at 222.
159 Nireaha Tamaki v Baker, above n 48, at 382-383.
Courts to interpret the statute which plainly assumes the existence of a tenure of land under custom and usage.”160 Nireaha Tamaki is significant for its reaffirmation of the legal relevance of Māori customary law.161
However, their Lordships also declared that they had “no reason to doubt the correctness” of Wi Parata’s outcome, since “the issue of a Crown grant implies a declaration by the Crown that native title has been extinguished.”162 Thus, between 1877 and 1986, the only criticism of this judgment related to a “non-crucial” element of its reasoning.163 Wi Parata was upheld as good law for over a century. As recently as 1963, the Court of Appeal cited Wi Parata as “weighty authority” for the Solictor- General’s submissions on the extinguishment of Māori customary rights over foreshore land.164 Subsequent judicial opinions therefore assumed that English law entered a legal vacuum in New Zealand, ameliorating an uncivilised Aboriginal society. Such an assumption was not only unsubstantiated, but unnecessary. As now retired Justice Durie has noted, if Māori law was found inadequate for the administrative needs of the colony, “one had only to legislate for English law to apply to the extent necessary.”165
Yet Boast alleges that the “scanty” subsequent case law has preferred the Privy Council’s Nireaha Tamaki approach over Wi Parata, claiming that it is “not so much the courts that have been hostile to Māori customary law as politicians. The common law has always been, in a sense, pluralist.”166 While this may resonate with modern liberal thought, such a presentist assertion ignores the contemporary influence of Wi Parata and the long shadow it cast. The common law’s enduring denial of Māori customary law was one of the most damaging conduits for its displacement from the
160 At 382.
161 The aftermath of this lofty authority is also intriguing as an unprecedented and unparalleled example of the New Zealand judiciary “publicly avowing its disapproval of a superior tribunal”: Robin Cooke “The Nineteenth Century Chief Justices” in Portrait of a Profession: The Centennial Book of the New Zealand Law Society (Reed, Wellington, 1969) 36 at 46.
162 Nireaha Tamaki v Baker above n 48, at 383-384.
163 Williams above n 134, at 226.
164 Re the Ninety-Mile Beach [1963] NZLR 461 (CA) at 468 per North J; at 475, T.A. Gresson J approved the Wi Parata assessment of the Government as “sole arbiter of its own justice.”
165 Durie, above n 26, at 459. Arguably, this was the intended effect of the English Laws Act 1858.
166 Boast, above n 7, at 129.
state legal system.167 As my next chapter will demonstrate, however, the most recent judicial expressions on this issue indicate that tikanga Māori is properly viewed as a strand of legal theory (albeit a defeasible one) woven into New Zealand’s common law.
167 Dawson, above n 2, at 58. See 59-60 for Dawson’s tabulation of the primary routes through which Māori customary law had been almost entirely supplanted by 1900.
Chapter II: Judicial Treatment of Māori Customary Law in the “Breakthrough Era” and Beyond
“The Common Law shows an assimilative power which, to all appearance, grows by what it feeds on.”168
As a corollary of the “Breakthrough Era” in the field of Law and Indigenous Peoples, there has been significant political recognition of the need for Māori self-government and self-determination. 169 To some extent, these desires have been satiated by legislation which sought to give Indigenous legal practice a place within the state’s legal system. 170 However, in New Zealand, “the accommodation of indigenous peoples within the state has resulted directly from judicial prompting.”171 Through the lens of three case studies, Te Weehi v Regional Fisheries Officer,172 Ngāti Apa, and Takamore, the following two chapters examine how contemporary judicial attitudes have augmented the legal status of autochthonous customary law. As the most recent authority on the status of tikanga Māori, Takamore merits separate treatment and is considered in Chapter Three.
Exhibiting a certain “common law adventurousness” in its novel use of the doctrine of Native title,173 Te Weehi marked a pivotal development in the judicial recognition of Māori customary law. By simply quashing a conviction under the Fisheries Act 1983, this case injected “a legal pluralism” directly into New Zealand’s judicial system “without the aid of any ushering statute.”174
168 Frederick Pollock The Genius of the Common Law (AMS Press, New York, 1967) at 77.
169 Roughan, above n 3, at 145.
170 Dawson, above n 2, at 57, alludes to the Resource Management Act as exemplifying the weak statutory incorporation of Māori concerns. See also the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal to hear grievances and recommend settlements arising under the Treaty. The quasi-judicial work of the Tribunal has generated more detailed attention to tikanga Māori.
171 E.T. Durie “The Rule of Law, Biculturalism and Multiculturalism” [2005] WkoLawRw 4; (2005) 13 Waikato L Rev 41 at
43. Durie describes this “classic judge-made constitutional development” as occurring also in Australia, Canada and the United States.
172 Te Weehi, above n 58.
173 McHugh Aboriginal Societies above n 40, at 422.
174 McHugh Māori Magna Carta, above n 38, at 131.
In 1984, Te Weehi was apprehended by fisheries officers at Motunau Beach and subsequently charged with possession of undersized paua and behaving in a threatening manner towards those officers.175 A Māori of Ngati Porou descent, Te Weehi challenged the application of the general regulatory and statutory regimes by submitting that, having obtained Ngai Tahu permission and taken the shellfish in the traditional Māori way for personal consumption, he was exercising a customary Māori fishing right.
In response to this claim, Williamson J summarised the historic judicial vacillation over “Māori rights” as having evolved from an initially “benevolent and even protective attitude” towards Māori, 176 to a more recent “restrictive approach,” particularly in relation to land.177 Significantly, Te Weehi was distinguishable from these narrow Native title precedents because it concerned non-territorial use-rights, severable from ownership of the foreshore or tidal zone.178 Moreover, “Māori fishing rights” were specifically preserved in s 88(2) of the Fisheries Act 1983.179 Williamson J interpreted this section as encompassing customary Aboriginal rights, both cognisable and enforceable by the courts as an integral part of the common law unless “expressly extinguished by statute.”180 The legal relevance of Māori customary rights is therefore not contingent on specific statutory preservation, and when ascertaining liability under the Fisheries Act, McHugh notes that “local courts are required to investigate and enforce Māori customary law.”181
Ultimately, the evidence of historic practice established “a limited customary right” to take reasonable quantities of shellfish for personal consumption – a right “clearly” inapplicable to Europeans or other New Zealanders.182 In response to the Crown’s
175 Fisheries (Amateur Fishing) Regulations 1983, reg 8(1)(b); and Fisheries Act 1983, s 94(1)(c), respectively.
176 Te Weehi, above n 58, at 687. This benevolence was evinced in Kauwaeranga (1984) 14 VUWLR
227 (Native Land Court, 3 December 1870, Fenton CJ); and R v Symonds, above n 116.
177 Te Weehi, above n 58, at 686-688. Per Williamson J, examples of this parochial stance include Wi Parata, above n 1; Nireaha Tamaki v Baker, above n 155; Mangakahia v New Zealand Timber Co Ltd [1881] NZLR 2 SC 345; Tamihana Korokai v Solicitor-General [1912] 32 NZLR 312 and Waipapakura v Hempton, above n 58.
178 Te Weehi, above n 58, at 691 overturned the earlier ruling on the non-severability of fishing rights and land ownership rights in Waipapakura v Hempton, above n 58.
179 Te Weehi, above n 58, at 688.
180 At 692.
181 McHugh Māori Magna Carta, above n 38, at 131.
182 Te Weehi, above n 58, at 693.
arguments of legal inequality and discrimination, Williamson J observed that “such inequality between persons may indicate an overall justice rather than an injustice.”183 What are the implications of such a tantalising statement? How far can this legitimately be extrapolated? The High Court’s self-professedly “more general” view appears to endorse the re-recognition of Māori customary law-ways (at least where these relate to rights “apart from ownership in land”) in order to redress historic injustices and grievances dating from the colonial epoch.184
Te Weehi epitomised a veritable “burst of Treaty-related jurisprudence” which “promised a set of common law principles that synthesised Treaty and ‘aboriginal rights’ elements and to which courts might have unapologetic recourse.”185 Te Weehi achieved the recognition de jure of tikanga Māori in the context of this customary fishing right, and a raft of cases applied Māori customary law in its aftermath.186 By reversing the principle of non-justiciability established in Wi Parata, this precedent realigned New Zealand with the North American jurisprudence of Indigenous rights,187 and signalled a brave new world for Treaty-based public law claims.
However, the courts beat a hasty retreat in the 1995 whale-watching case,188 and McHugh depicts the ensuing case law as cautious and ambivalent about broadening “the boundaries of recognition.”189 Many cases misunderstood the implications of Te Weehi, perceiving it to be premised upon a recognition of Treaty fishing rights, whereas the judgment clearly relies on the common law doctrine of Native title.190 Throughout the 1990s, the courts experienced considerable difficulty in grappling with “a number of complex issues” whenever tikanga Māori intersected with the rules of the State’s legal system.191 And then along came Ngāti Apa – a case which nudged
183 At 693.
184 At 693.
185 McHugh Aboriginal Societies, above n 40, at 422.
186 See, for example, Minister of Agriculture and Fisheries v Campbell [1989] DCR 254 (DC); Minister of Agriculture and Fisheries v Love [1988] DCR 370 (DC); Minister of Agriculture and Fisheries v Hakaria [1989] DCR 289 (DC); Reihana v Minister of Agriculture and Fisheries HC Invercargill AP 4/89, 13 August 1989; Rarere v Minister of Agriculture and Fisheries HC Gisborne AP 12/90, 11 February 1991.
187 This jurisprudence is best exemplified by the decisions of the Supreme Court of Canada in Calder, above n 47; Delgamuukw v British Columbia [1997] 3 SCR 1010; R v Sparrow [1990] 1 SCR 1075. 188 Ngai Tahu Māori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA).
189 McHugh Aboriginal Societies, above n 40, at 422.
New Zealand’s common law beyond Anglo-centric concepts of property, and, by extension, beyond Anglo-centric concepts of law.
In this case, several Marlborough Sounds iwi had applied to the Māori Land Court for declaratory orders of their customary rights to the foreshore and seabed, such declarations constituting the Court’s jurisdiction under s 131(1) of the Te Ture Whenua Māori Act 1993. The claimants then sought an investigation of title and a vesting order under s 132, which would change the status of such land from Māori customary land (held according to tikanga Māori) to Māori freehold land. The Attorney-General and joint non-Māori parties contested this customary claim, both on common law and statutory grounds. First, the Attorney-General relied upon In Re the Ninety Mile Beach for the proposition that customary title had been extinguished in all foreshore between the high and low water marks in which contiguous landward title had been investigated by the Māori Land Court.192 Secondly, it was argued that certain legislation, by vesting all such property in the Crown, had extinguished any Māori customary property in the foreshore and seabed.193 These arguments were fatally premised on the Wi Parata assumption that the extinguishment of Native title was coterminous with British acquisition of sovereignty.194
In the Māori Land Court, Judge Hingston permitted the claim to progress to an evidential hearing on Māori customary rights, distinguishing the Ninety Mile Beach case on the facts and denying that the vesting legislation had extinguished any customary property.195 In the High Court, however, Ellis J applied the Ninety Mile Beach case to conclude that Māori customary property in the foreshore had been extinguished.196 After an arduous passage through the Māori Appellate Court and the High Court, the Court of Appeal was ultimately tasked with ascertaining the extent of the Maori Land Court’s jurisdiction to determine the status of foreshore or seabed.197
192 Ngāti Apa, above n 46, at [4], citing Re the Ninety-Mile Beach, above n 164.
193 At [4], citing s 7 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 and s 9A of the Foreshore and Seabed Endowment Revesting Act 1991.
194 At [61] and [79].
195 In Re Marlborough Sounds Foreshore (1997) 22A Nelson MB 1.
196 Attorney-General v Ngāti Apa [2002] 2 NZLR 661.
197 Ngāti Apa, above n 46, at [6].
The Court of Appeal unanimously overruled the Ninety Mile Beach case, concluding that Māori customary property interests had not been extinguished by (i) the Crown’s assumption of sovereignty; (ii) the Māori Land Court’s investigation of title to adjoining land; (iii) purported statutory extinguishment; or (iv) statutory regulation of activities in the intertidal zones. Consequently, the Māori Land Court did have jurisdiction to investigate Māori title to the foreshore and seabed.198
In doing so, the Court rectified two fundamental misconceptions which had plagued the High Court judgment and its forebears. Elias CJ explicitly labelled Wi Parata as “discredited authority” and denounced the Ninety Mile Beach case as “contrary to other and higher authority” and “revolutionary,” even by contemporary standards.199 The other Justices concurred, deeming these precedents to have been “wrongly decided.”200 Per Elias CJ, the High Court had erred:201
... in starting with the English common law, unmodified by New Zealand conditions (including Māori customary proprietary interests), and in assuming that the Crown acquired property in the land of New Zealand when it acquired sovereignty.
First, New Zealand common law was not synonymous with its English equivalent. Far from being monocultural, the Antipodean legal system was uniquely sourced from two streams: both an Anglo-centric import, and extant Indigenous law-ways. Secondly, following the erroneous obiter in Wi Parata, the Court had wrongly conflated sovereignty and its accompanying radical title (imperium) with private property ownership (dominium). 202 In reality, however, the Crown’s paramount interest in land was burdened by common law Native title rights, capable of extinguishment “only by consent or with statutory authority.”203 These two issues are rather intricately intertwined.
198 At [91] per Elias CJ. Significantly, the Court of Appeal was then New Zealand’s highest domestic appellate body.
199 At [13] per Elias CJ.
200 At [158] per Keith and Anderson JJ; and at [204] per Tipping J.
201 At [13] per Elias CJ.
202 At [26] per Elias CJ. For the ostensibly “universal” knowledge of the imperium/dominium
dichotomy, see Morris Cohen “Property and Sovereignty” (1927) 13 CLQ 8 at 8.
203 At [85].
Tipping J noted that the advent of English common law in New Zealand “did not extinguish Māori customary title. Rather, such title was integrated into what then became the common law of New Zealand.”204 Tipping J also emphasised that the legal concept of ‘title’ should not be artificially constrained by equation with unadulterated English concepts, for Māori customary title was contingent on “the customs and usages (tikanga Māori) which gave rise to it.”205 Such a conclusion is bolstered by the Court’s approval of Viscount Haldane’s admonition against the tendency, “operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law.”206 Elias CJ endorsed His Lordship’s caution against the use of abstract, Anglo-centric legal principles when dealing with questions of Native title.207 Keith and Anderson JJ agreed, ruling that the determination of native land rights necessarily entails “the study of the history of the particular country and its usages.”208 Māori customs of land tenure, or tikanga, therefore remain an intrinsic part of our common law. In exercising its s 132 jurisdiction, the Māori Land Court was entitled to draw upon this enduring legal system to determine the existence (or lack thereof) of Māori customary title over the seabed and foreshore.209
Effectively “tearing out the long chapter on Wi Parata... and its progeny, and relegating it to an appendix of colonial injustices,”210 the judicial errata of Ngāti Apa re-forged New Zealand’s legal history. Re-acknowledging both the actuality and the legal validity of Māori customary law, the reasoning of the Court of Appeal has been described as perhaps “the best yet to be made by a judiciary, at least in the Commonwealth.”211 And yet, given the gravity of its subject-matter, Ngāti Apa
204 At [183] per Tipping J.
205 At [184] per Tipping J.
206 Amodu Tijani v Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399 (HL) at 402.
207 Ngāti Apa, above n 46, at [5], per Elias CJ (citing Amodu Tijani at 404).
208 At [145] per Keith and Anderson JJ. However, see [106] for Gault P’s “real reservations” as to the appellants’ ability to establish their claims, given that property interests “in the nature of usufructuary rights or reflecting mana, though they may be capable of recognition... in a developed common law informed by tikanga Māori, are not interests with which the provisions of Part VI [of the Te Ture Whenua Māori Act 1993] are concerned.” This culturally-blinkered view of title seems diametrically opposed to the caveat voiced by Viscount Haldane, and sits uneasily alongside its benediction by the rest of the Court of Appeal.
209 At [186] per Tipping J.
210 Seuffert Jurisprudence of National Identity, above n 51, at 133.
211 Jacinta Ruru “The Still Permeating Influence of the Doctrine of Discovery in Aotearoa/New
Zealand: 1970s-2000s” in Robert J Miller and others (ed) Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, New York, 2010) 227 at 234.
provoked a maelstrom of public controversy, political opportunism and misunderstanding.212 It was therefore somewhat unsurprising that, in the next public legal clash of cultural values, “matters of life and death, so central to human identity”213 would arouse a similar media frenzy.
212 Seuffert Jurisprudence of National Identity, above n 51, at 133. For an account of the political and legislative consequences of Ngāti Apa, see Claire Charters and Andrew Erueti (ed) Māori Property Rights and the Foreshore and Seabed: The Last Frontier (Victoria University Press, Wellington, 2007); Tom Bennion, Malcolm Birdling and Rebecca Paton (ed) Making Sense of the Foreshore and Seabed: A Special Edition of the Māori Law Review (Māori Law Review, Wellington, 2004).
213 Takamore, above n 6, at [99] per Elias CJ.
Chapter III: Takamore v Clarke - A New Take on Tikanga?
Perhaps better known under its colloquial epithet, “the body-snatching case,”214 Takamore concerned an inter-family dispute over the manner and burial location of James Takamore. Progressing to the Supreme Court, this case has been portrayed as “a clash of cultures and customs... a Māori challenge against the common law rule” positing the executor as primary decision-maker.215 The High Court and a majority of both the Court of Appeal and the Supreme Court affirmed the longstanding common law rule that the final decision was that of the executor, but each Court reached that decision for different reasons and enunciated different processes for decision-making. Significantly, each echelon of the judicial hierarchy also commented on the legal standing of tikanga Māori – comments which simultaneously recognise and respect Māori customary law, while subordinating it to the propriety of the common law.
A Background
James Takamore, of Whakatohea and Tūhoe descent, was born in Taneatua, near Whakatane in the Bay of Plenty.216 His whanau marae, Kutarere, is governed by Tūhoe tikanga. Mr Takamore met Denise Clarke in the early 1980s, and followed her to Christchurch after the birth of their first child in 1985. Although Takamore regularly phoned his mother, he returned to the Bay of Plenty only twice after relocating to Christchurch, and made comments publicly dissociating himself from his Taneatua whanau.217
214 “Body-snatching burial case ends with victory for widow” (18 December 2012) Radio New Zealand News <http://www.radionz.co.nz/news/te-manu-korihi/123770/body-snatching-burial-case-ends-with- victory-for-widow> Shane Cowlishaw and Olivia Wannan “Takamore body-snatching case could lead to standoff” (19 December 2012) Stuff.co.nz <http://www.stuff.co.nz/national/8096895/Takamore- body-snatching-case-could-lead-to-standoff> .
215 Nicola Peart “Immediately Post-Death: The Body, Body Parts and Stored Human Tissue” (paper
presented to New Zealand Law Society Family Law and Property Law – “Death and the Law” Intensive Conference, May 2012) 115 at 117. Further, Radio New Zealand, above n 214, described the case as a protracted “legal battle which pitted traditional Māori protocol against the common law.”
216 Given the legal intricacies of this case (and the possibility for ethnic antagonism), a clear grasp of
the factual matrix is crucial for a thorough analysis of the various judgments. Nin Tomas’ comments to the media exemplify the rancour generated by this case, condemning the judicial “dismemberment” and “outlawing” of tikanga in Takamore (in both the High Court and Court of Appeal) as “cultural genocide”: Yvonne Tahana “'Cultural genocide' claim in body-snatch case” The New Zealand Herald (online ed, Wellington, 16 July 2012).
217 Mr Takamore told friends that he regarded Christchurch as his home, that he “was now a South Island Māori” and “didn’t like the stuff that happened” in his family in the North Island: Takamore v
On 17 August 2007, Takamore died suddenly of an anuerism in Christchurch, where he had lived for almost three decades with Ms Clarke and their children. His will appointed Ms Clarke as sole executrix and instructed that his body be buried, without specifying a burial location. Ms Clarke promptly commenced funeral arrangements in Christchurch. However, Takamore’s mother, brother, sister and her partner arrived on 18 August to make a claim for his body,218 demanding to bury Takamore at the Kutarere urupa219 in accordance with Tūhoe tikanga. When familial negotiations reached an impasse, the Taneatua whanau unilaterally took possession of Takamore’s body. Ms Clarke obtained an urgent interim injunction restraining burial (which was not served), and finally a disinterment license, which had not been actioned at the time of trial.220
Both parties accepted that no legislative prescription existed, and that their claims would therefore be decided according to the common law of New Zealand.221 Ms Clarke sought orders authorising her to disinter Takamore’s body, which the Taneatua whanau opposed on the basis that “the common law gives effect to Tūhoe custom or tikanga” which had been in existence from time immemorial and practised continuously amongst the whanau, their hapu and iwi as an integral part of their lives and identity.222 Essentially, the Court faced two broad issues: (i) whether the common law or Tūhoe tikanga applied to the disposal of the body; and (ii) whether tikanga overrode the deceased’s wishes if customary traditions had ceased to play a meaningful part in the deceased’s life.
B High Court
From complicated precedent, Fogarty J distilled the principle that an executor has the common law right to determine the manner of disposal of the deceased’s body,
Clarke [2012] 1 NZLR 573 (CA); [2011] NZCA 587 at [21]- [31]. Mr Takamore also appeared to have adopted an English pronunciation of his surname: Peart, above n 215, at 117.
218 These individuals will henceforth be referred to collectively as “the Taneatua whanau.”
219 Burial ground.
220 Takamore v Clarke, above n 217, at [31]-[44].
221 Takamore, above n 6, at [4].
222 Takamore v Clarke, above n 217, at [3].
subject to fiduciary duties. 223 In her capacity as executor, Ms Clarke had a corresponding duty to consult with and consider the views of the Taneatua whanau. Having satisfied this duty, Ms Clarke had the right to make the final decision regarding burial arrangements and claim possession of the body until it was “properly” buried.224 This power was unaltered by temporary or ‘improper’ burial, thus a continuing course of action remained available to Ms Clarke, subject only to the issue of “whether and how Tūhoe tikanga collides with the common law.”225
The “ultimate question” was whether the application of tikanga was “reasonable” in the circumstances.226 Fogarty J concluded that Tūhoe tikanga was unreasonable here because it prioritised the “collective will” of the tribe over Takamore’s “individual freedom.” A cardinal principle of the common law, “individual freedom” could not be limited or overridden by collective decision-making unless that freedom had been relinquished during the deceased’s lifetime by adherence to tribal customs, obligations and conditions.227 As Tūhoe tikanga had not evolved so as to allow Takamore or his Christchurch family the freedom to opt out of Tūhoe burial custom,228 it could not be reasonably imposed on his executor or his body. The defendants therefore lacked lawful authority to dispossess Ms Clarke of the body.229 Josephine Takamore appealed the decision.
Given his conclusion of “unreasonableness,” Fogarty J did not have to “formally decide” either the content of the relevant tikanga, nor whether it constituted part of the common law. However, His Honour indicated that there was “clearly a powerful argument in support of both propositions” – an enigmatic addendum which hinted at greater potential status for Māori customary law within the common law generally.230
C Court of Appeal
223 Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525 (HC) at [46].
224 At [47].
225 At [52]-[53].
226 At [82]. This prerequisite of “reasonableness” was extracted from Cooper J’s judgment in Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC).
227 Clarke v Takamore, above n 223, at [87]-[88].
228 At [73].
229 At [90].
230 At [89].
While the Court of Appeal unanimously dismissed Ms Takamore’s appeal, it divided as to the reasons, and the majority opinion of Glazebrook and Wild JJ differed significantly from the rationale expounded in the High Court as to why the common law should trump tikanga in these circumstances.
In his minority judgment, Chambers J endorsed Fogarty J’s ruling that Takamore was free to change his cultural identity, thereby precluding the posthumous application of Tūhoe tikanga to his body. Given the “overwhelming” evidence that Takamore had chosen to live outside Tūhoe tribal life,231 “Tūhoe customary law, even if valid, did not apply to him and does not apply to his body,” therefore “the pure common law should apply.”232 Conversely, Glazebrook and Wild JJ rejected the “quite unsafe” conclusion that Takamore had abandoned his Tūhoe heritage.233 Indeed, given the urbanisation of modern New Zealand society, their Honours warned against jumping to precipitous conclusions that an individual had lost (or severed) their connection with Māori culture “simply because they live outside traditional tribal lands and do not practice the traditional customs and ways of their Indigenous group.”234
Having found that Takamore had not renounced his tribal connections, the majority then noted the common law presumption of continuity, accepting that Indigenous customs continued to govern intra-Māori affairs (including burial) and comprised part of the common law until abrogated by statute.235 In order to benefit from this presumption, the particular Tūhoe tikanga would have had to satisfy five well- established principles of recognition “analogous to those used to recognise customs in England, although with some modifications.”236 These criteria involved (i) longevity;
231 Takamore v Clarke, above n 217, at [289] per Chambers J.
232 At [322].
233 At [156]. The majority also denied that Takamore had expressed a “single clear view” as to his preferred burial location: at [162].
234 At [158].
235 At [112].
236 At [121].
(ii) continuity;237 (iii) reasonableness;238 (iv) certainty;239 and (v) lack of statutory extinguishment.240
While the first two criteria were satisfied here, the custom was deemed unreasonable because it contravened a general principle “at the root” of New Zealand’s legal system.241 The majority rejected Fogarty J’s “individual autonomy” conclusion on the reasonableness requirement, as such an approach would almost invariably negate Māori custom, which was inherently collective and whakapapa-centric.242 Glazebrook and Wild JJ still held that the Tūhoe burial custom was unreasonable, albeit on different grounds.243 If agreement was not forthcoming in a burial dispute, tikanga permitted one “simply to take the body.”244 This potential for the strongest party to unilaterally seize the body would legitimise the use of force, and was “contrary to the principle of ‘right not might’”, which is a “fundamental principle of the rule of law.”245
While unreasonableness was sufficient grounds to dispose of the appeal, the Court also found that the Tūhoe tikanga failed the certainty requirement. As contended for, the custom provided no “clear allocation of legal rights to the body” but rather, “a process for debate and negotiation.” And in situations of dispute, the custom neglected to provide “a mechanism for making a final decision.” 246 Neither reasonable nor certain, Tūhoe tikanga was not cognisable as part of the common law of New Zealand.
237 At [122]-[123].
238 At [124]-[127].
239 See [128]-[132] for the concession that “this requirement could not apply with the same rigour as it does to English customs because Māori customary law has its basis in broad values and varies between
hapu and iwi.”
240 At [133]-[134]. Customary rights may only be extinguished by unambiguous statutory provisions:
Ngāti Apa, above n 46, at [85].
241 Johnson v Clark [1907] UKLawRpCh 160; [1908] 1 Ch 303 at 311.
242 Takamore v Clarke, above n 217, at [151].
243 See [92]-[94] for a summary of the Court of Appeal’s findings on the expert evidence on the custom’s content.
244 At [163].
245 At [165]–[166]. Although there was less risk of such actions instigating war in modern society, the majority predicted that the taking of a body could easily escalate into violence.
246 At [167]. Other than the aforementioned seizure of the body and subsequent redress of the aggrieved party’s loss.
Two further tensions compounded the difficulty with recognising tikanga in this case. First, in a case involving a clash of cultures, how would the custom apply to non- Tūhoe, such as Ms Clarke? This was tentatively labelled as a “conflict of laws issue.” 247 Secondly, assuming that the deceased’s cultural status determined the personal application of tikanga, should a person’s ethnic identity be determined by common law or Indigenous standards?248 Glazebrook and Wild JJ were of the view that the custom should nevertheless be taken into account. Their Honours therefore proceeded to outline a “more modern approach” to Māori customary law that would integrate it into the common law wherever possible, rather than rely on strict colonial desiderata of recognition.249
1 Self-professed modernity
The Court’s “workable compromise” between the common law and Tūhoe tikanga relating to burial envisaged Tūhoe custom as “a relevant cultural consideration for an executor or executrix to take into account in determining the method and place of burial.”250 Thus, where the deceased and one or more family members are Tūhoe, the executor should adopt “a culturally appropriate process” in which decisions about the burial are openly discussed and negotiated. All whanau members, including non- Tūhoe, should be given the opportunity to participate, and provided with full information to enable them to do so. The majority held that such faciliation did not occur here. Ms Clarke was unfamiliar with Tūhoe customs and decision-making processes. These should have been explained to her, enabling her to consider them in fulfilment of her duties as executor.251
If consensus is reached, it would be unreasonable for the executor to refuse to give effect to this.252 Where consensus cannot be reached, however, the common law rule should prevail, leaving the final decision to the executor.253 While Tūhoe tikanga was undoubtedly an important cultural consideration, it could not ultimately dictate the
247 At [196].
248 At [191]. Given the ruling of unreasonableness, and the obiter comments on uncertainty, there was no pressing need to adjudicate on these issues.
249 At [254].
250 At [255].
251 At [261].
252 At [255].
253 At [258].
outcome because the “the common law requires an executor to make the final decision as to the method and place of burial” whereas “Tūhoe custom permits the taking of the body without agreement”.254 The ‘unreasonableness’ of Tūhoe tikanga precluded any deeper legal fusion in this instance.Such an integrated approach would, their Honours hoped, allow the common law to develop consistently with the Treaty of Waitangi. It would also harmonise New Zealand policy with the directives of the United Nations Declaration on the Rights of Indigenous Peoples (as well as other international human rights covenants), by acknowledging “the collective nature of Indigenous culture and the value of their diversity.”255
2 Problems with the “modern” compromise
Despite the high-sounding promise and potential of both strategies, Laura Lincoln has persuasively argued that neither the prima facie rules of recognition nor the alternative modern approach are “as accommodating to Māori custom as they initially appear to be.”256 Glazebrook and Wild JJ’s requirements of recognition are not only premised on a dubious legal parallel, but difficult to satisfy when applied to tikanga Māori.
The analogy with English common law recognition of local custom was arguably inappropriate in New Zealand circumstances. No New Zealand court had hitherto drawn such a nexus.257 The closest antipodean analogy seems to be an implied one in Public Trustee v Loasby,258 yet the test for recognition adopted therein is “distinct, and arguably more appropriate” than that established by the Takamore majority.259 In Arani v Public Trustee of New Zealand, 260 the Privy Council recognised the incommensurability of Māori custom and English local custom. Lord Phillimore
254 At [257].
255 At [254]; United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/Res/61/295 (2007).
256 Laura Lincoln “Sir Edward Taihakurei Durie student essay competition 2012 – Takamore v Clarke [2011] NZCA 587: the most significant legal development affecting Māori” (February 2013) Māori Law Review <http://maorilawreview.co.nz/2013/02/sir-edward-taihakurei-durie-student-essay- competition-2012-takamore-v-clarke-2011-nzca-587-the-most-significant-legal-development-affecting- maori/> .
257 Lincoln, above n 256.
258 Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC).
259 Lincoln, above n 256.
260 Arani v Public Trustee [1919] UKPC 71; [1920] AC 198 (PC).
acknowledged that while Māori may retain an internal power of self-government allowing their customs to be modified, English custom lacks such quasi-legislative internal authority. Unlike its ‘immemorial’ English counterpart, Māori custom is inherently dynamic and amenable to modification.261
Glazebrook and Wild JJ cited Arani regarding the dynamism and malleability of tikanga, but held that these features contravened the requirements of longevity and certainty, thereby precluding its common law recognition. Although the longevity requirement has been moderated for Indigenous customs, which instead require proof of a “long-standing, consistent practice” for recognition,262 this slightly diluted test is still unsuitable. Because tikanga Māori can evolve and adapt to new circumstances, “Māori custom in its true form could never meet the modified test.”263 The criterion of certainty was equally problematic, as the majority required “ultimate certainty” for common law recognition.264 Such a stringent requirement would require judicial modification of uncertain customs, which would mean a common law failure “to recognise authentically Māori custom.”265 The Court neglected to address or mitigate these concerns. By setting well-nigh insurmountable thresholds for recognition, the joint judgment ensured an unfortunate outcome: the unlikelihood of future common law recognition of Māori custom.266
Furthermore, as Chambers J observed, the majority ruling on unreasonableness applies indiscriminately and “unnecessarily.”267 Where all parties are Tūhoe and unanimously wish to adhere to tribal customs and processes, their reliance on tikanga to decide even the minutiae of burial would be unlawful. Moreover, the majority relied on an insufficient evidential basis to reach this conclusion. In their discussion of the recognition criteria, their Honours accepted that Māori custom was not fixed from time immemorial and could have adapted after colonisation, 268 and yet (somewhat counterintuitively) “relied on evidence of ancient practice to hold that the
261 At 204-205.
262 Takamore v Clarke, above n 217, at [122].
263 Lincoln, above n 256.
264 Takamore v Clarke, above n 217, at [167].
265 Lincoln, above n 256.
266 Lincoln, above n 256.
267 Takamore v Clarke, above n 217, at [321] per Chambers J.
268 At [122].
custom was unreasonable.”269 The majority concern with potential contemporary violence was pure speculation, and their resultant conclusion of unreasonableness was flawed.
Even the alternative “more modern” approach has no significant effect on the treatment of Māori custom because it simply reiterates the existing common law duties of executors.270 Indeed, the majority conceded that their modern approach required “little extension of the common law relating to burial,” as the expected process of consultation “with a range of stakeholders” was one of several principles of Tūhoe tikanga already accommodated in the common law.271
Given the divergence of judicial opinion on both the duties of executors and the role of Māori custom, it was relatively unsurprising that the Supreme Court granted leave to appeal.272
D Supreme Court
Nor, however, was consensus to be found at the summit of New Zealand’s appellate system. The Supreme Court split 3:2. The majority judgment of Tipping, McGrath and Blanchard JJ placed primacy on the common law rights held by the executor, and positioned Māori burial customs as a relevant consideration for the legal decision- maker. In separate dissenting judgments, Elias CJ and William Young J rejected this “first-decider status” postulated by the majority.273 However, they concurred that the common law imports tikanga as a value and matter to be weighed in the decision- making process.
Tipping, McGrath and Blanchard JJ affirmed that English common law had only ever applied in New Zealand insofar as applicable to the circumstances of the colony, and thus the common law of New Zealand “reflects the special needs of this country and
269 Peart, above n 215, at 123 (emphasis added).
270 Lincoln, above n 256.
271 Takamore v Clarke, above n 217, at [257].
272 Peart, above n 215, at 125 described this appeal as “a rare opportunity to address... the extent to which the common law should accommodate Māori custom in the private law sphere.”
273 Takamore, above n 6, at [173] per William Young J.
its society.” Barring unequivocal statutory extinguishment, “our common law has always been seen as amenable to development to take account of custom.”274
Their Honours dismissed the appeal, being satisfied of the existence of a “common law rule under which personal representatives have both the right and duty of disposal of the body of a deceased.”275 This “well-established” rule required the executor to consider “different cultural, religious and spiritual practices as well as the views of immediate and wider family.” Such responsibility ensured that “due weight is given by the common law to the tikanga concerning Māori burial practices, where they arise and are brought to the attention of decision-makers.”276 The majority perceived this pragmatic rule as “highly desirable” during occasions of great grief and loss; “both practical and convenient,” it obviated the need for litigation by forcing parties to accept the personal representative’s decision.277 This approach allegedly “allows a range of values to be weighed without presuming, in advance, which cultural position will prevail” while simultaneously ensuring expedient decision-making for reasons of public health and decency.278
When the deceased is of Māori descent, whanau invocation of tikanga will not trump the common law relating to burial. Instead, the common law of New Zealand requires the personal representative, as ultimate arbiter of burial disputes, to consider tikanga alongside all other important values which form the deceased’s heritage.279 In burial disputes, the Supreme Court has clarified that tikanga Māori is not primus inter pares, but one consideration among many.
Ultimately, the majority found that “Takamore’s life choices” to reside in Christchurch with Ms Clarke carried “greatest weight” and were determinative. The Court therefore upheld Ms Clarke’s decision as appropriate, and ordered that disinterment should be effected so as to respect “the sensitivities of his [Takamore’s] Kutarere family and relevant Tūhoe custom.”280
274 At [150].
275 At [152].
276 At [152].
277 At [153].
278 At [157].
279 At [164].
280 At [169].
1 Dissension: Burial as “a shared responsibility”281
Given “wider considerations of cultural diversity and in particular Māori tikanga,”282 and the long-standing “no property rule” relating to corpses, Elias CJ denied the executor’s exclusive right to determine burial matters.283 Her Honour perused the “meagre statutory background” against which the common law was to resolve the issue, and found that s 25 of the Coroners Act 2006 indicated “legislative recognition of Māori cultural practices which also properly influence the judge-made common law.”284 Evidently, statutory acknowledgement and facilitation of Māori practices exerts a corresponding effect on the common law recognition of such practices.
According to the Chief Justice, the common law did not justify a rule elevating the executor to primary decision-maker.285 One of her core reasons for this stance was that our “few and sparsely reasoned” authorities neglected to mention “cultural values in New Zealand society... and in particular do not deal with Māori values and cultural preferences” which properly influence the treatment of the dead.286 While it would be overly simplistic to credit tikanga as the sole factor here, Elias CJ partially dismissed these precedents for their insufficient engagement with Māori custom.
Rather than awarding either claimant the right in law to determine burial affairs, or conceptualising the two value-systems as binary opposites, Elias CJ denounced the “false antithesis” held to exist between “pure common law” and tikanga Māori.287 Her Honour asserted that:288
Values and cultural precepts important in New Zealand society must be weighed in the common law method used by the Court in exercising its inherent
281 At [90] per Elias CJ.
282 At [81].
283 At [90] per Elias CJ.
284 At [47]. Section 25 permits family members to remain with the body while it is under the control of the coroner. While “family members” are not defined in the Act, Elias CJ presumes that this must be a broader concept than that of “immediate family,” defined in s 9 as dependent on “cultural links as well as personal and blood relationships.” Section 9 expressly includes whanau within the ambit of “immediate family.” Elias CJ notes that the Law Commission’s report, which instigated this provision, was prompted “by the need to respect and facilitate Māori practices and preferences and the involvement of the wider whanau grouping with respect to the treatment of those who have died.”
285 At [55]-[58], [62] and [77] per Elias CJ.
286 At [62].
287 At [92].
288 At [94].
jurisdiction, according to their materiality in the particular case... Māori custom according to tikanga is therefore part of the values of the New Zealand common law.
In this case, “the understandable wish” of the Christchurch family clashed with “the understandable obligation” of the Taneatua whanau to have Takamore interred in close proximity to his whakapapa and birthplace. Both value-laden preferences “derived from different and equally valid cultural frameworks.”289 Even if there had been irrefutable evidence that Takamore had repudiated his tribal heritage, hapu values would remain relevant. The Taneatua whanau would still have had standing to invoke tikanga in a claim for the body. While the deceased’s views are a mandatory consideration, they are not legally determinative. This is true “even in a case without a cultural dimension.” Because such decisions impact “the enjoyment of the culture of the hapu in a way which engages s 20 of the New Zealand Bill of Rights Act (NZBORA)” as well as the Treaty of Waitangi and its preservation of Māori society, the interest of this minority group must be weighed, regardless of the wishes of the deceased.290 “Might not right” was thus an unnecessarily pejorative way of framing Māori customs, one which illegitimately denied the consideration of Tūhoe tikanga in favour of “individual freedom,” a principle which the common law does not, in fact, accept as conclusive in burial disputes.
Regardless of common misconceptions about the paramountcy of spousal preference in disputed burial matters, Elias CJ emphasised that “the wider circumstances” may dictate a different outcome. It would “be paying lip service” to the importance of Māori society and culture in New Zealand (derived from the Treaty of Waitangi and recognised in the NZBORA and modern legislation) to conclude that the wishes of the spouse will always eclipse other interests. The Chief Justice held that “[w]here traditional identity and important cultural values are at stake, preference for the spousal connection may properly yield.”291 Here, the “powerful” cultural claims of the
289 At [98] per Elias CJ.
290 At [100] per Elias CJ. Section 20 of the New Zealand Bill of Rights Act 1990 affirms the rights of, inter alia, ethnic minorities, who: “shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.”
291 At [101] per Elias CJ.
Taneatua whanau were overridden by Takamore’s life choices.292 Interestingly, Elias CJ concluded with the significant obiter statement that, had Takamore maintained his family connections with Kutarere “even slightly, the claim based on whakapapa, identity, and hapu may well have prevailed.”293 This hypothetical scenario seems to set an undemanding threshold for tikanga Māori to outweigh any competing cultural precepts.
William Young J agreed with Elias CJ that the deceased’s executor ought not to have “a first decider role” in relation to burial.294 However, he found the Chief Justice’s concession to customary law "substantial" but insufficient. His Honour disapproved of her positioning the High Court as ultimate decision-maker, instead of allowing an organic Māori process “which can, in the end, only be resolved by consensus, acquiescence or submission.” William Young J appears to adopt a much more radical stance than the rest of the Court, pointedly criticising the “lesser extent” of the majority’s accommodation of tikanga, and noting that “[the] final – and I think decisive – consideration is Māori... custom.”295 His Honour implied that greater common law genuflection to tikanga would be the ideal solution to any future cultural collisions.
E Residual uncertainties
As the first case to explicitly focus on the common law recognition of Māori customary law, Takamore is an undeniably important precedent. However, even beyond their 3:2 split over the common law duty of an executor, there is a certain opacity to the Supreme Court’s verdict. What are the implications of the majority judgment for the legal recognition of tikanga? Is it simply part of the law pertaining to burial matters? Or part of the common law generally?
Unlike the Court of Appeal, the majority proclaimed tikanga as a relevant consideration in burial disputes without determining when and how it could be
292 At [102] per Elias CJ.
293 At [105] per Elias CJ.
294 At [173].
295 At [213].
recognised as part of the common law.296 In contrast to the approach of the lower courts, Tipping, McGrath and Blanchard JJ did not initially apply the common law doctrine of continuity to ascertain the legal status of tikanga. Instead, their Honours simply accepted the “executor primacy rule” and found that the common law accommodated customary law by framing this rule so that tikanga is a relevant consideration in the executor’s decision-making.297 Problematically, the Supreme Court did not explain why they had sidestepped the possibility of tikanga being recognised as law by virtue of the doctrine of continuity, and its clear requirements for recognition of custom. Residual ambiguity results from the Court’s failure to clarify how they considered and weighed the tikanga observed by the Taneatua whānau in this case.298 Can tikanga ever be law in this area, or has the Supreme Court effectively relegated tikanga to only ever being a factual consideration in burial disputes? It is currently unclear “whether the Court has eliminated the possibility of tikanga coming into the matrix of consideration not just as fact but as law.”299
Despite rejecting the existence of a rule determining who can dispose of the deceased’s body, Elias CJ also held that tikanga is only a consideration to be weighed by the Court as part of the “values” of New Zealand’s common law in determining a burial dispute.300 But what does this actually mean for the legal recognition of tikanga? What does it mean to be a “value” of the common law? Does the minority judgment, too, consign tikanga to factual status? What other values must be weighed? In the context of burial disputes, “the status of tikanga... is therefore left in a somewhat confused state.”301
Despite its circumvention of the doctrine of continuity, all judgments at the Supreme Court level acknowledged that the common law requires reference to tikanga. Perhaps this acceptance means that tikanga is part of the general common law, irrespective of whether it satisifes the requirements for recognition set out by the
296 Natalie Coates “What does Takamore mean for tikanga?” (February 2013) Māori Law Review
<http://maorilawreview.co.nz/2013/02/what-does-takamore-mean-for-tikanga-takamore-v-clarke-2012- nzsc-116/> .
297 See Takamore, above n 6, at [164]. The majority also confirmed that tikanga would be considered
by the Court in the event of any challenge to the executor’s decision.
298 Coates, above n 296.
299 Coates, above n 296.
300 Takamore, above n 6, at [94].
301 Coates, above n 296.
Court of Appeal. In myriad other areas where tikanga intersects with the common law, Takamore may therefore indicate that tikanga is now a consideration or part of the “values” that influence outcomes. Natalie Coates, an otherwise staunch critic of the ambiguity of Takamore, has lauded this element of the case as “a potentially exciting recognition of the relevance and applicability of tikanga in the New Zealand legal framework.”302
None of the judgments expressly overrule the Court of Appeal approach to the recognition of tikanga as law, hence the difficulty of drawing “concrete conclusions” on this issue. However, Coates asserts that these tests still stand, and that Takamore furnishes New Zealand courts with two avenues through which to recognise tikanga: either “as law under the Court of Appeal tests or, failing that, as a value or relevant consideration to be taken into account by decision-makers.” 303 Thus, when the relevant tikanga does not satisfy the five desiderata for recognition, “tikanga can still come in to the mix, be considered relevant and afforded weight” in a legal forum. Only the passage of time (and subsequent litigation) will tell “how the Courts and Māori will react to Takamore.”304 Any predictions as to the precedent impact of this case for the judicial recognition of tikanga remain speculative at best. In theory, at least, there is great scope for increased and meaningful judicial recognition of Māori customary law. In reality, however, is the New Zealand judiciary likely to instigate such structural changes?
302 Coates, above n 296.
303 Coates, above n 296, reminds readers that the majority decision of the Supreme Court still allows adherence to tikanga in certain circumstances. For example, where the application of Māori burial custom is not in dispute; an executor concurs with the tikanga-based approach; or an executor disagrees with the tikanga approach but the circumstances are such that on an application resulting from a dispute, the Court finds that tikanga should be given priority in the circumstances.
304 Coates, above n 296.
Chapter IV: What, if Anything, are Contemporary Courts Doing Differently from their Colonial Era Counterparts?
“[T]ikanga Māori has been left in a kind of limbo vis-à-vis state law.”305
In Drawing Out Law, an elegant paean to the Indigenous legal traditions of Canada, John Borrows writes in the style of Anishinabek Nation’s legal traditions and folklore to challenge the positivist glass ceiling which precludes further recognition of Indigenous law.306 ‘Scroll Two’ depicts a pensive young academic who mulls over the legal history he has been lecturing, and becomes despondent about the status quo. Despite the “promising developments” heralded by the common law 307 and constitutional legislation,308 the young man was troubled that “the same decisions that protected Aboriginal rights simultaneously hid strong currents that threatened their erosion.”309 These precedents sabotaged their own potential by allowing “justified infringements” of Aboriginal rights,310 and the unilateral reduction of treaty rights by non-Aboriginal governments.311 New Zealand jurisprudence, I believe, exhibits the same paradox. The courts profess amenability to tikanga Māori, but are ultimately inhibited from full recognition of another system of law-ways (or normative perspectives) by their deeply-embedded commitment to the norms of the prevailing legal order.
Takamore seems to be progressive, modern, and all things desirable for the repositioning of Māori customary law within our legal system. However, this superficial liberality masks a deeper, institutional antipathy towards tikanga Māori. Just as it is undesirable to fabricate a “false antithesis” between “pure common law”
305 Roughan, above n 3, at 146.
306 John Borrows Drawing out Law: A Spirit’s Guide (University of Toronto Press, Toronto, 2010) at 23.
307 Calder, above n 47, at 200. In this case, the Supreme Court of Canada recognised the justiciability of Aboriginal title as “not solely a moral or political concern,” and “elevated the notion that Aboriginal peoples had un-extinguished legal interests.” Moreover, Calder confirmed that Aboriginal rights had a sui generis source, “pre-existing rights” that had their own logic “indigenous to their culture [though] capable of articulation under the common law.”
308 Constitution Act 1982, s 35(1), enacted as Schedule B to the Canada Act 1982 c 11 (UK).
309 Borrows, above n 306, at 25.
310 See R v Sparrow and Delgamuukw v British Columbia, above n 187.
311 R v Marshall [1999] 3 SCR 533.
and customary law,312 it is equally facile to deride the ethnocentrism and parochialism of the colonial courts, while lauding modern Indigenous law jurisprudence as enlightened and egalitarian. Since its inception, New Zealand’s legal profession (including the judiciary) has been weaned on two Anglocentric tenets of law: legal positivism and parliamentary sovereignty. Inextricably intertwined, this duo constitutes a golden thread of New Zealand’s legal history and constitutional ethos. And it is a belligerent thread, implacably hostile to any perceived usurpation of authority, or attempts at power-sharing. Thus, while substantive changes have been wrought within the legal system, no systemic revolution has overhauled the rules of recognition. Nor, as Dawson suggests, is such change imminent.313 But this chapter is not a battle cry against Western legal norms, nor a dirge for suppressed Indigenous mores. Positivism and parliamentary sovereignty are not necessarily insidious, inimical concepts, but ideological limitations to the common law recognition of Māori customary law within New Zealand.
A Colonial and Post-colonial Synchronicity: From Lawfare to Rights- Recognition
The divestment of autochthonous laws was a global phenomenon, by no means unique to our latitude. Throughout the world, Indigenous peoples invariably moved from a state of political independence to one of reliance upon the law-ways of the settler polity for external validation of their being.314 By the end of the 19th century, “Empires of Uniformity” were well-established across the colonised globe.315 These “Empires” effected “the enclosure of aboriginal culture by laws of overweening state paternalism that sought to transform aboriginal society through de-tribalisation and reconstruction of aboriginal being.”316 Compounding the use of military force, the ideological operation of “white lawfare”317 to consolidate settler hegemony was “a shared historical trajectory.”318
312 Takamore, above n 6, at [92] per Elias CJ.
313 Dawson, above n 2, at 61-62.
314 McHugh Aboriginal Societies, above n 40, at 1.
315 For a thorough explanation of this neologism, see James Tully Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, Cambridge, 1995) at 58-98. 316 McHugh Aboriginal Societies, above n 40, at 49.
317 Term taken from John L Comaroff “Colonialism, Culture, and the Law: A Foreword” (2001) 26 Law and Social Inquiry 305 at 306.
318 McHugh Aboriginal Societies, above n 40, at 3.
Beyond this simultaneity of colonial ‘lawfare’, New Zealand jurisprudence has also matched international developments in its experience of the “breakthrough era” and its attendant paradigm shift. Spanning 1973 through 1992, this era transformed Indigenous “outsiders” into “meaningful legal actors” by forging “a new national jurisprudence of rights and inclusion.” 319 As a result of several “landmark judgments,” the Indigenous populations of North America and Australasia “became rights-bearing inhabitants of the host common law legal systems.”320 The dénouement of the 20th century heralded “seismic and systemic” change in the common law recognition of aboriginal legal interests, generating “shockwaves” and “tremors that continue to reverberate today.”321
Characterised by the vociferous vilification of “the old-style juridicial exclusion and marginalisation,” post-breakthrough era judgments are perhaps the clearest manifestation of these shockwaves. Consequently, Prendergast CJ’s insouciant dismissal of the Treaty as “a simple nullity” is repeatedly stigmatised.322 In the domain of proprietary rights, Ngāti Apa saw the Court of Appeal making a concerted effort to distance the judiciary from the dark, ethnocentric and assimilative colonial past associated with Wi Parata.323In Takamore, the Supreme Court judgment was silent as to the status of this much-maligned case and the Court of Appeal did not explicitly denounce Wi Parata. Their Honours did, however, recognise and truncate its anti-customary law legacy324 by confirming that “the continuation of customary law is inherent in the recognition of aboriginal property in cases such as Ngāti Apa and Mabo.”325 This overt opprobium is a recurring motif of post-breakthrough era decisions in New Zealand. And yet, loud as it is, we ought not to misinterpret such precedent-bashing as representing greater legal change than it actually augurs. According to David Williams, these repetitive denunciations of Wi Parata are a
319 McHugh Aboriginal Title, above n 47, at 3.
320 At 3. As his “landmark” examples, McHugh lists Calder, above n 47; Martinez v Santa Clara Pueblo [1978] USSC 76; 436 US 49 (1978); Te Weehi, above n 58; New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) [the Lands case]; and Mabo, above n 47.
321 McHugh Aboriginal Title, above n 47, at 4.
322 Williams, above n 134, at 2. Subsequently, in Minister of Conservation v Māori Land Court [2008] NZCA 564 at [126]- [127], Baragwanath J emphasised that Wi Parata had been “excoriated by this Court in Ngāti Apa” and described the former case as one “now known to all law students as a case in which a court... unjustly deprived Māori of their legal rights.”
323 Takamore, above n 6, at [13] per Elias CJ.
324 Takamore v Clarke, above n 217, at [117]. See particularly FN55.
325 At [120].
rhetorical device, encouraging us to ignore the dominant substrata of Western legalism – and the continued assimilation of Māori into a Western legal system.
B A Complex Nullity: What We Really Mean When We Talk about Wi Parata
Deeply concerned by the general unfamiliarity with the facts of the 1877 dispute, and the well-nigh universal ignorance of the Court’s explicit statement that the cession of sovereignty was “a matter with which we are not directly concerned,”326 Williams scrutinised why this non-binding obiter dictum has been perpetually recited. He concluded, rather convincingly, that it was:327
... not in order to apply it in a future case... but only in order to reject it yet again. Distancing modern law from the colonial past, we seem to want to reject ‘a simple nullity’ as often and as vehemently as possible.
What we are witnessing is essentially a protracted ideological and jurisprudential auto-da-fé. Wi Parata is a convenient heretic, repeatedly exhumed and re-burnt at the stake in order to purify and justify the current legal system. For a judiciary grappling with a legal history of assimilationist case law which now appears unacceptably prejudiced and discriminatory, Wi Parata serves as a means to an end: the attainment of some kind of collective catharsis.
Revealingly, Wi Parata is authority for a second (oft-ignored) statement: the non- justiciability of Crown dealings with Aborigines for cession of Native title. Premised on jure gentium, the Court held that these interactions are immune from judicial review because the incoming sovereign assumes “the correlative duty, as supreme protector of aborigines, of securing them against any infringement of their right of occupancy.” 328 As Williams underlines, this protective principle is “invariably overlooked in contemporary jurisprudence.” 329 But if it had been noticed by commentators, the fate of Wi Parata might have been quite different. Rather than being pilloried as a legal pariah, it may well have been “celebrated as a ‘good’
326 Wi Parata, above n 1, at 78.
327 Williams, above n 134, at 4 (emphasis added). 328 Wi Parata, above n 1, at 78 (emphasis added). 329 Williams, above n 134, at 226.
case.”330 Evidently, Wi Parata embodied much more than rampant ethno-stratification and “the assumptions of stadial theory.”331 Irrespective of what current vitriol would have us believe, the Supreme Court of the late 19th century was not ardently anti- Māori.
Conscious of the forgotten benevolence of Wi Parata, Williams refutes Elias CJ’s assertion that Ngāti Apa was “not a modern revision.”332 While he accepts Ngāti Apa as “a distinct and welcome advance on the old law”, Williams challenges the misconception that “the old law was aberrant and that it was always ‘wrong’.”333 The Symonds/Parata polarity itself is “a false dichotomy,” as neither the colonial courts nor the Privy Council conceived of a common law doctrine of Aboriginal title in that epoch.334 Such a doctrine did not emerge in New Zealand law until 1986/1987,335 and it is ahistorical to project it artificially into the past as grounds for condemning Prendergast CJ. The Court applied the common law as it stood at the time, and could have done no differently.
Nevertheless, in contrast to the reverent treatment of Symonds, the judgment of Prendergast CJ is “so virulently condemned” because this is a remarkably convenient dichotomy for Treaty jurisprudence. Allegedly epitomising “judicial timidity, unrecognised racism, and over-deference to the executive,” the mythopeic legal history surrounding Wi Parata is “baked largely, if not entirely, in a late twentieth- century oven.”336 Wi Parata is, ultimately, a useful scapegoat. This precedent is strategically mis-remembered in our legal history because such amnesia “enables us to lambast the awful 19th century past, and implicitly praise our current more enlightened views.”337 But this begs the question, are modern views really that much more enlightened? Without statutory incorporation, current legal orthodoxy denies the
330 At 171.
331 At 230.
332 Takamore, above n 6, at [13] per Elias CJ.
333 Williams, above n 134, at 208.
334 At 229.
335 Williams at 229-230 cites the Lands case (1987), above n 320; while McHugh pinpoints Williamson J’s recognition of common law Aboriginal title in Te Weehi (1986), above n 58, as the genesis of New Zealand’s “breakthrough era”: McHugh Aboriginal Title, above n 47, at 28. Boast, however, takes issue with McHugh’s chronology of the doctrine: Richard Boast “Book Review: Aboriginal Title as Contemporary Discourse” (December 2012) Māori Law Review
<http://maorilawreview.co.nz/2012/12/book-review-aboriginal-title-as-contemporary-discourse/>.
336 McHugh Aboriginal Societies, above n 40, at 24-25.
337 Williams, above n 134, at 231.
Treaty legal status in domestic law.338 Arguably, this conditional recognition means that “New Zealand law still treats the Treaty of Waitangi as little more than ‘a simple nullity.’” 339 Williams finds it both ludicrous and hypocritical that modern commentators are willing “to cast stones at Prendergast and Richmond for their 1877 views” without simultaneously condemning “the almost total lack of consideration for the Treaty, especially the original Māori text... in contemporary legal discourse.”340 Wi Parata is an ideological façade, masking current indifference to the Treaty by honing in on distant and ‘reprehensible’ obiter, and elevating modern jurisprudence by implication. And yet these words ring hollow. Despite the recent reiteration of Wi Parata’s inherent ‘wrongness,’ New Zealand’s legal system is still essentially monocultural, assimilative and hostile to Māori customary law.
C Assimilation: Past and Present
In the colonial era, New Zealand law was explicitly utilised as “a tool of empire.”341 Political objectives of racial amalgamation and legal assimilation long provided the impetus and justification for a purely English legal system. Today, New Zealand law is a tool of the status quo, operating covertly to perpetuate Anglocentric legal norms and suppress Indigenous competitors. McHugh depicted colonial legal systems as striving to establish “a constitutionally homogenised population, one that reflected Anglo-settler values, rather than a pluralistic one with sources of political authority apart from the state.”342 This description is equally true of modern New Zealand law, which cannot fathom any uncontrolled abdication of law-making power.343
338 Hoani Te Heuheu Tukino, above n 48. More recently, the Privy Council reaffirmed the necessity of statutory incorporation, despite ruling that the Treaty of Waitangi is “of the greatest constitutional importance to New Zealand”: New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC).
339 Williams, above n 134, at 233.
340 At 233.
341 For this apt phrase, I am indebted to Tracey Lindberg “The Doctrine of Discovery in Canada” in Robert J Miller and others (ed) Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, New York, 2010) 89 at 93.
342 McHugh Aboriginal Societies, above n 40, at 49.
343 At least not beyond the realm where Parliament has deemed the operation of tikanga Māori both
appropriate and permissible. One example is the Resource Management Act 1991, refer particularly to ss 2(1) (definitions of kaitiakitanga, mana whenua and tangata whenua, among others), 6(e), and 7(a).
Richmond J (of Wi Parata notoriety) exemplifies the undisguised assimilationist aims of early New Zealand policy and law. A strident voice in colonial politics, His Honour entertained strong views on “Native questions” and sought to destroy “‘the beastly communism’ of Māori society by introducing private property in land and the rules of the common law” to the nascent colony.344 Assimilation was invariably viewed and touted as settler beneficence – the singular route to civilisation and certainty.345 By 1961, political correctness had advanced to the stage where the Hunn Report on the Department of Māori Affairs deferred assimilation to the indefinite future, in favour of the beneficent goal of “integration.” 346 Henceforth, the Department was instructed to elevate “backward” or “primitive” Māori to a superior biculturalism (characterised by “feeling pretty much at home in either society”) and ultimately to “a completely detribalized minority whose Māoritanga is only vestigial.”347
Significantly, the Report concluded that statutory differentiation between Māori and Pakeha “should be reviewed at intervals and gradually eliminated.”348 Essentially a pseudo-choice between integration and assimilation, this official ultimatum is perhaps best characterised by McHugh as “a confused document of assimilationist propaganda.”349 In recent years, domestic case law from Te Weehi onwards seems to bode extraordinarily well for the legal recognition of Māori customary law. 350 However, the reality is not quite so simple. Can New Zealand law truly be categorised as post-colonial and non-assimilationist, given its peremptory commitment to legal homogeneity and hierarchy? What are the formal sources of our law? What are its cultural commitments, and what is the extent of its institutional receptiveness to legal diversity?
344 Williams, above n 134, at 143.
345 S.D. Carpenter “History, Law and Land: The Languages of Native Policy in New Zealand’s General Assembly, 1858-1862” (MA Thesis, Massey University, 2008) at 22-49, cited in Williams, above n, at 144.
346 J K Hunn Report on Department of Māori Affairs, with Statistical Supplement (Government Printer, Wellington, 1961).
347 Hunn, as cited in Ruru, above n 70, at 226. The limits of political correctness are rather evident in the phrasing of the report, which refers to “Group C” as “retarded” Māori.
348 Andrew Armitage Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand (UBC Press, Vancouver, 1995) at 145-146.
349 McHugh Aboriginal Societies, above n 40, at 347.
350 See the analysis of this judicial evolution in Chapters II and III, above.
D Why the “tenacious resistance” to Tikanga Māori?351
While Antipodean law has incrementally abandoned overtly assimilative policies and statutes, and although Hunn Report-style assimilation is allegedly a bygone era, the vestigial legal aversion to Māori customary law is both clear and easily accounted for. Buttressed by theories of legal positivism and parliamentary sovereignty, the formal hierarchy of the sources of New Zealand law is unyielding. The logical corollary of these two tenets is a self-perpetuating legal assimilation. Given the utter conviction in our English legal heredity, New Zealand law and its standard-bearers remain fundamentally unreceptive to the ‘foreignness’ of Māori customary law. It is worthwhile exploring these two deeply-entrenched concepts of law, in order to ascertain their effect on the jurisprudential stance towards tikanga Māori.
1 Legal Positivism
Elucidated most famously by H.L.A. Hart, the first of these common law canons is legal positivism.352 “[U]ndoubtedly the dominant legal paradigm” operating in New Zealand since colonisation, positivism is best described as “a state-centred philosophy of law” which posits legislation as the superlative source of law, a codification of rules emanating from “the authoritative institutions of the state.”353 This intensive focus on the state as sole law-maker means that when the “positivist gaze” falls upon Indigenous societies, nuclei of decentralisation and common mores, “but without the trappings of a nation state... the positivist sees no law.”354
For a prime example of the strictures of positivism, one need look no further than the rationales of the lower courts’ decisions in Takamore. In the High Court, Fogarty J deemed Tūhoe tikanga unreasonable due to its prioritisation of tribal “collective will” over Takamore’s “individual freedom.”355 Subsequently, a majority of the Court of Appeal resisted any deep recognition of tikanga, as it contravened the “cardinal principle” of “right not might.”356 Underpinning these rulings is a commitment to the
351 Dawson, above n 2, at 60.
352 H.L.A. Hart The Concept of Law (3rd ed, Oxford University Press, Oxford, 2012).
353 Dawson, above n 2, at 60.
354 At 60. For an historical example of the positivist perception of Indigenous ‘law’ and polities, see Lord Normanby’s Instructions, as cited in Wi Parata, above n 1, at 77.
355 Clarke v Takamore, above n 223, at [87]-[88].
356 Takamore v Clarke, above n 217, at [165]–[166].
Hartian concept of law, one which stipulates formal, institutional processes for rule- making and rule-recognition. Devoid of any cognisable pedigree (stemming simply from shared values and religious beliefs), customs and traditions cannot constitute enforceable law on the positivist philosophy. Irrespective of the Supreme Court’s ruling in 2013, the pervasive judicial attitude remains monocultural. Wary of engaging with an unwritten, unverifiable (at least by orthodox means), and finally un- English legal system, the judiciary still perceives tikanga as antithetical to “pure common law.” 357 Their approach ultimately relegates tikanga to a second-tier consideration for decision-makers, rather than a discrete (and legitimate) collection of law-ways. Evidently, legal positivism is “deeply resistant to the recognition of any unwritten, values-based, conception of customary law.”358The positivist aversion to customary law is not unassailable. Numerous academics have vehemently criticised the anti-customary stance.359 Borrows, for example, is deeply disturbed by the ethnocentric assumptions of John Austin’s custom/law dichotomy.360 Echoing the caveat of the Supreme Court of Canada,361 Borrows issues a timely reminder that customs are often “belittled by scholars like Austin because the societies who follow them have been inappropriately labelled as inferior or even ‘savage,’” and chastised for “their ‘ignorance’ and ‘stupidity’ in not submitting to hierarchical political government.”362 Positivism unacceptably perpetuates the myth of ethnic and legal inferiority. Still, this doctrine is a reality in our legal system, and its jurisprudential hegemony is only enhanced by New Zealand’s rigid adherence to “the constitutional principle of parliamentary sovereignty.”363
357 Despite Elias CJ’s warning against making such a distinction: Takamore, above n 6, at [92].
358 Dawson, above n 2, at 61.
359 See Lon Fuller “The Law’s Precarious Hold on Life” (1968-1969) 3 Ga L Rev 530; Lon Fuller “Human Interaction and the Law” (1969) 24 Am J Juris 1; Henry Maine Ancient Law: Its Connection
with the Early History of Society and its Relation to Modern Ideas (Oxford University Press, London, 1931) at 6; E.A. Hoebel The Law of Primitive Man (Athenaeum, New York, 1974); Max Gluckman Politics, Law and Ritual in Primitive Society (Aldine Publishing, Chicago, 1965).
360 John Borrows Canada’s Indigenous Constitution (University of Toronto Press, Toronto, 2010) at
12-13.
361 Calder, above n 47, at 346-7. In this case, the Supreme Court condemned the prejudicial rejection of Indigenous customs based on “ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete and when they were thought to be wholly without cohesion, laws or cultures, in effect subhuman species.”
362 John Austin The Province of Jurisprudence Determined, Volume II (2nd ed, Cambridge University Press, Cambridge, 1995) at 178 as cited in Borrows, above n 360, at 17.
363 Dawson, above n 2, at 61.
2 Parliamentary Sovereignty
In New Zealand, the supreme legislative power vests in Parliament. Essentially, Parliament is situated at the apex of “a vertical set of constitutional relationships,” unfettered by either entrenched rights or parallel legislative authorities.364 This has been the orthodox position for over 150 years, and is unlikely to change in the foreseeable future.365 New Zealand’s legal profession subscribes wholeheartedly to “a unified, centralised system of sovereignty,” and, as Dawson points out, such a legal philosophy is inherently opposed to the recognition of any external system of customary law, which is an archetypal “power-sharing arrangement, after all.”366 Indeed, to legally recognise tikanga Māori would be to accept “that there is a space within the state from which Parliament will withdraw, and not intervene”; carving out such “a system of shared sovereignty” is unfathomable to proponents of parliamentary sovereignty.367
New Zealand cannot accurately be classified as a decolonised legal system, as our law is imbued with legal positivism, parliamentary sovereignty, and myriad other Western norms. Whether properly characterised as an Anglocentric or Anglophilic legacy, these legal tenets continue to wreak an indelible impact on our judicial ethos. For as long as these dyadic ideas dominate New Zealand jurisprudence, the deep-seated and visceral rejection of tikanga Māori as a source of law will continue ad infinitum.
3 The Dearth of Systemic Change
While New Zealand law has undergone significant substantive change, Dawson exposes the complete stasis regarding form and the rules of recognition. He notes that the sources of New Zealand law have remained unchanged since 1900, engendering a
364 Dawson, above n 2, at 61.
365 For judicial affirmation of this commitment, see the obiter comment of Somers J in the Lands case, above n 320, at 690: “Sovereignty in New Zealand resides in Parliament.” For current statutory expression of this principle, see the Supreme Court Act 2003, s 3(2), which clarifies that “[n]othing in this Act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament.”
366 Dawson, above n 2, at 61.
367 At 61. On the perceived threat of legal pluralism to the state’s supreme right to “define, regulate, and enforce the legal system and standards of justice,” see Deborah H. Isser “The Problem with Problematizing Legal Pluralism” in Brian Z. Tamanaha, Caroline Sage and Michael Woolcock (ed)
Legal Pluralism and Development (Cambridge University Press, Cambridge, 2012) 237 at 239.
monocultural system “based almost entirely on New Zealand legislation and English common law, with... virtually no recognition within the state legal order of Māori customary law.”368 Dawson attributes this legal inertia to the sheer intensity of the colonisation process within New Zealand, the potent ideological undercurrents mentioned above, and in particular, their almost total displacement of Māori customary law from the state legal system.369 Given New Zealand’s past and present hostility to Indigenous customary law, he envisages the future as heralding only limited re-recognition of tikanga Māori, for example, the “partial indigenisation of specialist courts.”370
Significantly, all of Dawson’s hypothesised means of recognition would occur under the aegis of Parliament. What of the possibility of common law incorporation? While this was not expressly canvassed in his article, Dawson asserts that “more radical changes” would require “a significant change in the dominant legal philosophy and culture,” “a different notion of sovereignty,” and “an expanded legal imagination and a willingness to take greater risks, on the part of the New Zealand legal profession and state.”371 Dawson doubted that such transformations were imminent. Has his scepticism been eclipsed by Takamore? Does the latest verdict of the Supreme Court evince the requisite “significant change” in New Zealand’s legal ethos?
This chapter argues that it does not. Although Dawson’s article predates Takamore by four years, his perceptive comments apropos Māori customary law remain pertinent. This is because Takamore actually clinches something akin to the weak statutory incorporation alluded to in Dawson’s article. Takamore effects a substantive legal change, rather than any momentous or ground-breaking change in the systemic rules of recognition.372 Much like the weak injection of Māori concerns into strictly delineated legislative schemes, tikanga Māori is given the status of a “mandatory relevant consideration” in the context of burial disputes.373 However, Māori interests will not automatically trump all others when the final decision is made, but may be
368 Dawson, above n 2, at 58.
369 At 58. See Law Commission, above n 11, at chapter 3.
370 At 62.
371 At 62.
372 At 57.
373 See Roughan, above n 3, at 147-148, for comments on the Resource Management Act 1991 and its “special” purposive and substantive references to tikanga Māori.
surpassed by other, aggregate interests and considerations. 374 This is not a manifestation of deep inter-systemic interaction or “legal association,” but merely the selective appropriation of useful Māori concepts by the dominant legal system. 375 Currently, the State “retains some de facto capacity to shift away from respecting pluralism and tikanga whenever it chooses.”376
As Dawson indicates, these substantive statutory developments are “a considerable national achievement,” deliberate race-relations manoeuvres which have “kept the peace.”377 And all without sacrificing the positivist monopoly over the formal sources of law. The legal profession has therefore stigmatised any “strong” sense of legal pluralism,378 as such schismatic power-sharing would contravene the bedrock values of New Zealand law: positivism and parliamentary sovereignty.
E Colonial Colloquies vs. Indigenous Iterations
Equally, a vociferous group of Māori scholars rejects legal pluralism for reasons of cultural and political autonomy and mana. 379 As a result of settler lawfare, contemporary Māori must articulate claims for legal recognition of their law-ways in a counterintuitive, monocultural way. This uncomfortable ultimatum obliges Māori to either abandon such claims, or adopt the State-endorsed legal norms and “participate inside the common law constitutionalism that had engulfed them.”380 Thus, in an ostensibly post-colonial era, many Māori feel trapped within a colonial common law framework and a white man’s legal lexicon. These individuals recognise that, without
374 Dawson, above n 2, at 57. See Chapter III (above) for a closer dissection of the Supreme Court’s ruling in Takamore.
375 Roughan, above n 3, at 146.
376 At 177.
377 Dawson, above n 2, at 62.
378 Although the meaning of legal pluralism is unsettled, one definition that has attained basic academic consensus is “a situation in which two or more legal systems coexist in the same social field”: Sally Engle Merry “Legal Pluralism” (1988) 22 Law and Society Rev 869 at 870. Arguably, non-Indigenous scaremongering on the question of sovereignty has played a complementary role in preventing the legal recognition of Indigenous customary law in numerous jurisdictions. See Alan Cairns Citizens Plus: Aboriginal Peoples and the Canadian State (UBC Press, Vancouver, 1999) at 100.
379 While the majority of these writers have focused on the statutory incorporation of Māori custom and law, their arguments are equally applicable to judicial recognition and incorporation. Indeed, Roughan notes that the selective juridification of certain rules of tikanga has enabled the state “to isolate and control the extent to which they are given legal effect by, or incorporated into, the dominant system, either through statute or via the common law”: Roughan, above n 3, at 145 (emphasis added).
380 McHugh Aboriginal Societies, above n 40, at 4.
deeper systemic change, judicial recognition of tikanga Māori is meaningless and the umbrella of legal pluralism amounts to nothing but window-dressing.
This Indigenous scepticism is by no means unique to New Zealand. The late Perry Shawana epitomised Canadian First Nations’ opposition to “Western-based attempts to support Indigenous knowledge by using a protection approach... grounded in pluralist ideology.”381 In a similar vein, Taiaiake Alfred decreed that “Indigenous leaders who engage in arguments framed by a Western liberal paradigm cannot hope to protect the integrity of their nations.”382 Speaking of Aboriginal societies generally, McHugh explains “the enduring paradox” of the ostensibly post-colonial era thus: the more Indigenous peoples rejected the consequences of colonialism, “the more they co-opted (and adapted) key elements of it, such as (most notably) its legalism.”383 According to McHugh, this “enforced co-habitation” with imperial legalism has been “for some, a bitter legacy of colonialism.”384 Both prominent voices in the New Zealand debate, Ani Mikaere385 and Moana Jackson echo McHugh’s thesis and denounce the alleged concessions of legal pluralism as covert neo-colonialism.386
Jackson cynically depicts legal pluralism as “inherently assimilative and racist,” a deceptive and powerful ideological weapon within the positivist’s arsenal.387 Under “a guise of sensitivity and good faith,” he argues, “the colonial certainty of overt dismissal [of Māori customary law] has been replaced by a new-age legalism.”388 Far from honouring the law-ways of tikanga, this effete pluralism allows the “Pakeha
381 Perry Shawana “Legal Processes, Pluralism in Canadian Jurisprudence, and the Governance of Carrier Medicine Knowledge” in Law Commission of Canada (ed) Indigenous Legal Traditions (UBC Press, Vancouver, 2007) 114 at 123.
382 Taiaiake Alfred Peace, Power, Righteousness: An Indigenous Manifesto (Oxford University Press,
Oxford, 1999) at 40.
383 McHugh Aboriginal Societies, above n 40, at 56.
384 At 56.
385 For arguments on the legal supremacy and first-law status of tikanga Māori, see Ani Mikaere “How Will the Future Generations Judge Us? Some Thoughts on the Relationship Between Crown Law and Tikanga Māori” (paper presented to the Ma te Rango te Waka ka Rere: Exploring a Kaupapa Maori Organisational Framework, Te Wananga o Raukawa, Otaki, 2006); “Cultural Invasion Continued: The Ongoing Colonisation of Tikanga Māori” (2005) Yearbook of New Zealand Jurisprudence 134; “Tikanga as the First Law of Aotearoa,” above n 41.
386 Moana Jackson “Changing Realities: Unchanging Truths” in Commission on Folk Law and Legal Pluralism (ed) Papers Presented to the Congress at Victoria University of Wellington, August 1992: Volume II (Law Faculty, Victoria University of Wellington, Wellington, 1992) 443 at 454. See also Jackson 'The Treaty and the Word: The Colonization of Maori Philosophy' in Graham Oddie & Roy Perret (ed) Justice, Ethics and New Zealand Society (Auckland: Oxford University Press, 1992) at 1. 387 Jackson “Changing Realities: Unchanging Truths,” above n 386, at 444.
388 At 446.
legal system” to consolidate its hegemony by co-opting Māori legal concepts and processes, thereby remaining “a colonising leviathan that can choose which norms of the oppressed will be validated and which will be dismissed.389 On such arguments, corraling tikanga Māori within the jurisdiction of the general courts would simply empower a predominantly Pakeha institution to unilaterally “define and reshape Māori customary law”390 and lead to its stagnation.391 These assertions intimate that the contemporary courts are doing nothing fundamentally different from their colonial counterparts, as the legal system has not changed radically enough to enable them to do so.
389 At 452-453. For a striking indictment of the self-professedly “enlightened” pluralism as engendering “merely further blows in that dreadful attack to which colonisation subjects the indigenous soul,” see Jackson “Justice and Political Power,” above n 41, at 254.
390 Seuffert Jurisprudence of National Identity, above n 51, at 33.
391 Nin Tomas “Indigenous Peoples and the Māori: The Right to Self-Determination in International Law - From Woe to Go” [2008] NZ L Rev 639 at 667-668.
Conclusion: Inter-systemic Impasse
Whatever happened to New Zealand’s impressive “fin de siècle jurisprudence of engagement” with Aboriginal claims?392 Following the Lands case in 1987, it became de rigueur to “elevate the legal and political status of the Treaty from the nadir to which, it is said, it had been consigned by Parata,” through both legislation and case law.393 The Treaty has been flaunted as “the founding document of New Zealand,”394 “a grand constitutional compact,”395 “essential to the foundation of New Zealand,”396 and “of the greatest constitutional importance to New Zealand.”397 But how far does this reverential swooning extend? Is it precise, prophetic, or simple puffery? What does all this “lofty rhetoric”398 mean for the common law recognition of tikanga Māori?
As this dissertation has argued, it means very little. In the realm of customary law at least, the ‘breakthrough era’ has ground to a halt. The status quo has been neatly summarised by McHugh, who states that even where Māori customary law has been granted legal status, it remains submerged beneath “various statutory schemes and discretions.”399 Currently, New Zealand’s legal system:400
... gives hegemony to the law-ways of one Treaty partner, the Pakeha. It is certainly within the spirit of the Treaty, if not directly required by te tino rangatiratanga, that the law-ways of the other Treaty partner be put on something like an equal footing.
The continued denial of “equal footing” in law reifies the status of the Treaty as “a simple nullity,” and implicitly categorises Māori as “primitive barbarians” devoid of “any body of law or custom capable of being understood and administered by the
392 McHugh Aboriginal Societies, above n 40, at 10.
393 Williams, above n 134, at 3 declares that this elevation was achieved by incorporating “the principles of the Treaty of Waitangi” into various statutes, and then in the watershed Lands case.
394 Te Puni Kokiri He Tirohanga o Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as Expressed by the Court and the Waitangi Tribunal (2001) at 14.
395 Geoffrey Palmer Constitutional Conversations (Victoria University Press, Wellington, 2002) at 22. 396 Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 210 per Chilwell J.
397 New Zealand Māori Council v Attorney-General, above n 338, at 516 per Lord Wolff.
398 Williams, above n 134, at 3.
399 McHugh Māori Magna Carta, above n 38, at 95-96.
400 At 95.
Courts of a civilised country.”401 By refusing to recognise the inherent legality of Indigenous legal traditions, our common law has ensured the reverberation of the above, oft-vilified dicta of Prendergast CJ. This inertia is due to the ideology (and longevity) of English law, which continues to influence both the content and sources of New Zealand law. While modern New Zealand courts proclaim their willingness to consider tikanga Māori, theirs is a profession imbued with the same legal norms and rules as their 19th-century forebears. Consequently, despite all protestations to the contrary, their decisions are remarkably similar.
401 Wi Parata, above n 1, at 77-78.
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C Treaties
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E Journal Articles
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John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary law” [2008] JSPL 13; (2008) 12 Journal of South Pacific Law 56.
E. T. Durie “Custom Law: Address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 VUWLR 325.
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Alex Frame “Colonising Attitudes Towards Maori Custom” [1981] NZLJ 105. Lon Fuller “Human Interaction and the Law” (1969) 24 Am J Juris 1.
Lon Fuller “The Law’s Precarious Hold on Life” (1968-1969) 3 Ga L Rev 530.
Paul McHugh “Law, History, and the Treaty of Waitangi” (1997) 31 New Zealand Journal of History 38.
Peter McKenzie “New Zealand’s First Chief Justice: The Rule of Law and the Treaty” (2012) 43 VUWLR 207.
Sally Engle Merry “Legal Pluralism” (1988) 22 Law and Society Rev 869.
Ani Mikaere “Cultural Invasion Continued: The Ongoing Colonisation of Tikanga Māori” (2005) Yearbook of New Zealand Jurisprudence 134.
Ani Mikaere “Tikanga as the First Law of Aotearoa” (2007) Yearbook of New Zealand Jurisprudence 24.
Grant Morris “James Prendergast and the Treaty of Waitangi: Judicial Attitudes to the Treaty During the Latter Half of the Nineteenth Century” (2004) 35 VUWLR 117.
Nicole Roughan “The Association of State and Indigenous Law: A Case Study in 'Legal Association'” (2009) 59 UTLJ 135.
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D.V. Williams “Māori Issues II” [1990] NZRL Rev 129.
F Parliamentary and Government Materials
J K Hunn Report on Department of Māori Affairs, with Statistical Supplement (Government Printer, Wellington, 1961).
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2009).
Te Puni Kokiri He Tirohanga o Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as Expressed by the Court and the Waitangi Tribunal (2001).
G Unpublished Papers and Theses
John Borrows “Indigenous Legal Traditions in Canada” (Report for the Law Commission of Canada, Ottawa, 2006).
Natalie Rāmirihia Coates “Me Mau Ngā Ringa Māori I Ngā Rākau A Te Pākehā? Should Māori Customary Law be Incorporated into Legislation?” (LLB (Hons) Dissertation, University of Otago, 2009).
Joe Williams He Aha Te Tikanga Māori (paper presented to the Law Commission, 1998).
H Internet Resources
Atholl Anderson “Shortland, Edward” (30 October 2012) The Dictionary of New Zealand Biography: Te Ara - the Encyclopedia of New Zealand
<http://www.TeAra.govt.nz/en/biographies/1s11/shortland-edward>.
Richard Boast “Book Review: Aboriginal Title as Contemporary Discourse” (December 2012) Māori Law Review <http://maorilawreview.co.nz/2012/12/book-review-aboriginal- title-as-contemporary-discourse/> .
“Body-snatching burial case ends with victory for widow” (18 December 2012) Radio New Zealand News <http://www.radionz.co.nz/news/te-manu-korihi/123770/body-snatching- burial-case-ends-with-victory-for-widow> .
Natalie Coates “What does Takamore mean for tikanga?” (February 2013) Māori Law Review <http://maorilawreview.co.nz/2013/02/what-does-takamore-mean-for-tikanga- takamore-v-clarke-2012-nzsc-116/> .
Shane Cowlishaw and Olivia Wannan “Takamore body-snatching case could lead to standoff” (19 December 2012) Stuff.co.nz
<http://www.stuff.co.nz/national/8096895/Takamore-body-snatching-case-could-lead-to- standoff>.
Mark Derby “Māori–Pākehā relations -Military conflicts” (15 November 2012) Te Ara - The Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/artwork/28561/wairau-affray- 1843> .
Peter D’Errico “John Marshall: Indian Lover?” (2000) 39 Journal of the West
<http://www.umass.edu/legal/derrico/marshall_jow.html>.
Halsbury’s Laws of England (5th ed, 2012, online ed) vol 32 Custom and Usage.
Laura Lincoln “Sir Edward Taihakurei Durie student essay competition 2012 – Takamore v Clarke [2011] NZCA 587: the most significant legal development affecting Māori” (February 2013) Māori Law Review <http://maorilawreview.co.nz/2013/02/sir-edward-taihakurei-durie- student-essay-competition-2012-takamore-v-clarke-2011-nzca-587-the-most-significant- legal-development-affecting-maori/>.
Ministry for Culture and Heritage “The Wairau Incident” (20 December 2012) NZHistory Online <http://www.nzhistory.net.nz/wairau-incident> .
Yvonne Tahana “'Cultural genocide' claim in body-snatch case” The New Zealand Herald
(online ed, Wellington, 16 July 2012).
Michael Wordsworth Standish “FITZROY, Robert” (23 April 2009) Te Ara - the Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/1966/fitzroy-robert> .
I Other Resources
Moana Jackson “Changing Realities: Unchanging Truths” in Commission on Folk Law and Legal Pluralism (ed) Papers Presented to the Congress at Victoria University of Wellington, August 1992: Volume II (Law Faculty, Victoria University of Wellington, Wellington, 1992) 443.
Hirini Moko Mead The Nature of Tikanga (paper presented to Mai I te Ata Hāpara
Conference, Te Wānanga o Rauwaka, Otaki, 11-13 August 2000).
Ani Mikaere “How Will the Future Generations Judge Us? Some Thoughts on the Relationship Between Crown Law and Tikanga Māori” (paper presented to the Ma te Rango te Waka ka Rere: Exploring a Kaupapa Maori Organisational Framework, Te Wananga o Raukawa, Otaki, 2006).
Nicola Peart “Immediately Post-Death: The Body, Body Parts and Stored Human Tissue” (paper presented to New Zealand Law Society Family Law and Property Law – “Death and the Law” Intensive Conference, May 2012) 115.
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