|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
Lost in Transition:
Tikanga in Aotearoa New Zealand’s Common Law
Lydia Te Rā Joseph
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otago
3 November 2023
Kia whakatōmuri te haere whakamua
I walk backwards into the future with my eyes fixed on my past
ACKNOWLEDGEMENTS
I would like to express my gratitude to my supervisor, Mihiata Pirini.
Thank you for your immense help with this dissertation. Particularly your clear and constructive comments, and for pushing me to develop my ideas.
Thank you also to my friends and whānau for your love and support this year, as always.
Especially to those who lent their proof-reading expertise.
TABLE OF CONTENTS
Aotearoa New Zealand’s common law has long differed from the common law applied in England.1 Since its introduction almost two centuries ago, it has developed into its own distinct creature. Its most unique features are the ones influenced by tikanga, a set of beliefs and practices that regulated the conduct of Māori in Aotearoa some 600 years before the arrival of English law altogether, and that continues to do so today.
The Supreme Court’s recent decision in Ellis v R2 confirms that Aotearoa New Zealand’s common law is undergoing a significant transition towards a “modern approach” for the recognition of tikanga.3 Ellis follows nearly two centuries of interaction between tikanga and English law - or Aotearoa’s first and second laws.4 This decision therefore prompts us to consider not just what we have gained, but also what we may have lost, in the transition. This dissertation will explore the implications of the Court abandoning the “colonial tests” for incorporating tikanga into the common law, specifically the approaches taken in Public Trustee v Loasby5 (decided in 1908) and Arani v Public Trustee6 (decided in 1920).
I argue that the Supreme Court ought not to have overruled the legal test applied in Loasby. That test provided a distinct mechanism for judicial recognition of tikanga as an enforceable legal right. In contrast to the modern approach, which gives cognisance to tikanga principles in the common law, Loasby could be invoked by litigants to justify specific tikanga rules and procedures in the common law. I conclude that Loasby’s overruling was a judicial oversight, one caused in part by a pattern of persistent judicial misunderstanding of Loasby by previous courts, but also attributable
1 See the judgment of Elias CJ in Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [28].
2 Peter Hugh McGregor Ellis v R [2022] NZSC 114.
3 At [21].
4 Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in M Belgrave, M Kawharu
and D Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Melbourne, 2005) at 330.
5 Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (HC).
6 Arani v Public Trustee of New Zealand [1919] UKPC 71; [1920] AC 198 (PC).
to the majority’s pursuit of a legal development that has ultimately lost sight of the individual Māori litigant.
I Defining Tikanga and the Common Law
In this dissertation, “common law” refers to the body of judge-made law inherited from England and now developed and applied in New Zealand according to the doctrine of precedent.7 It is law that is not statute, although it may involve the interpretation and application of statutes. It arises from the inherent authority of the court, and is historically founded on the customs, practices and values of people.8
As noted above, Aotearoa New Zealand’s common law is increasingly incorporating and reflecting aspects of tikanga Māori. Tikanga Māori is described by Joe Williams as “essentially the Māori way of doing things – from the very mundane to the most sacred or important fields of human endeavour”.9 Tikanga derives from “tika” (meaning right or correct) – it encompasses both the right ways of doing things and the underlying values that inform such actions.10
Hirini Moko Mead explains:11
Tikanga embodies a set of beliefs and practices associated with procedures to be followed in conducting the affairs of a group or an individual. These procedures are established by precedents through time, are held to be ritually correct, are validated by usually more than one generation and are always subject to what a group or an individual is able to do.
7 Dame Helen Winkelmann “Picking up the Threads” (2021) 19 NZJPIL 1 at 2.
8 At 2.
9 Joe Williams He Aha Te Tikanga Mäori (unpublished paper for the Law Commission, 1998) at 2 as cited in Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2009) at [71] (“Law Commission 2009”) 10 Joan Metge Comments provided to the Law Commission on a draft “Mäori Custom and Values in New Zealand Law” (unpublished paper for the Law Commission, 2001) as cited in Law Commission, above n 9, at [73].
11 Hirini Moko Mead The Nature of Tikanga (paper presented at Mai i te Ata Häpara Conference, Te Wänanga o Raukawa, Otaki, 11–13 August 2000) at 3.
Tikanga is a broader concept than the English word “law” denotes.12 Tikanga is the foundation of Māori law; which Sir Eddie Taihakurei Durie describes as “the values, standards, principles or norms to which the Māori community generally subscribed for the determination of appropriate conduct”.13 However, in this dissertation I use the term tikanga to broadly denote the concept of Māori law. Later in the dissertation I introduce the concept of “Māori customary law”, which more narrowly refers to customs based in tikanga that are recognized as enforceable in courts.14
II Outline of Dissertation
The following chapters are structured as follows.
Chapter Two explains the decision in Ellis and contextualises it within a brief overview of the interactions to date between tikanga and common law. It then revisits Loasby and Arani in some detail, before explaining the evolution and significance of the modern approach adopted in Ellis.
Chapter Three considers and critiques the mixed treatment that Loasby and Arani have received in modern courts, in particular Loasby’s misinterpretation by the courts in Takamore15 and Ellis.
Chapter Four compares the substantive value of the modern and colonial approaches to tikanga. Chapter Five investigates an underlying explanation for the Supreme Court’s overruling of Loasby.
Chapter Six provides a brief conclusion to the dissertation in light of the common law method more generally.
12 At 15.
13 ET Durie “F.W. Guest Memorial Lecture 1996: Will the Settlers Settle? Cultural Conciliation and Law” (1996) 8 OLR 449 at 451-452.
14 Law Commission He Poutama (NZLC SP24, 2023) at 135 (“Law Commission 2023”).
15 Clarke v Takamore [2009] NZHC 901; [2010] 2 NZLR 525 (HC) (“Takamore (HC)”); Takamore v Clarke [2011] NZCA 587, 2012]
1 NZLR 573 (CA) (“Takamore (CA)”); Takamore v Clarke [2012] NZSC 17, [2013] 2 NZLR 733 (“Takamore (SC)”).
CHAPTER II
THE TRANSITION TO A MODERN APPROACH TO TIKANGA IN AOTEAROA NEW ZEALAND’S COMMON LAW
I Introduction
The posthumous appeal of Peter Ellis’ child sexual offending charges made an unlikely stage for the most significant development in tikanga jurisprudence to date. However, to a majority of the Supreme Court at least, Ellis raised aspects of tikanga that demanded attention and resolution.
In a unanimous finding, the Court agreed that where it is relevant, tikanga will continue to be recognised in Aotearoa New Zealand’s common law.16 Although there were conflicting views on whether tikanga was relevant in Ellis, the majority (comprising Winkelmann CJ, Glazebrook and Williams JJ) considered it pertinent to the continuation of Mr Ellis’ appeal.17 In doing this, they confirmed an approach to tikanga whereby tikanga values and principles are recognised as part of the common law.18
This chapter examines the Court’s transition towards a modern approach, driven by the initiative of New Zealand’s highest courts. To that end, I begin by detailing the Ellis litigation. I then briefly canvass the history of tikanga in New Zealand’s legal system, before discussing the evolution of the modern approach confirmed in Ellis.
16 Ellis, above n 2, at [19].
17 At [12].
18 At [116] per Glazebrook J, [182] per Winkelmann C and [261] per Williams J.
II Ellis v R
A Background to the Case
In 1993, Mr Ellis was convicted of 16 charges of child sexual offending. The accusations leading to his conviction were controversial, and he has consistently maintained his innocence.19 After two failed appeals to the Court of Appeal, the Supreme Court finally granted Mr Ellis’ application for leave to appeal his convictions in July 2019.20 Shortly after in September 2019, Mr Ellis died, raising the issue of whether the appeal could continue posthumously.21
At the first hearing in November 2019, the legal parties acting for Mr Ellis and the Crown were unprepared for Glazebrook J’s request to “perhaps at some stage, just if you could address the tikanga aspects of this”.22
Later in the hearing, the point was raised again by Williams J:23
If we’re serious about tikanga in the law, as Justice Glazebrook mentioned, should New Zealand divert from that very Anglo approach? ...
In a tikanga context the death not only is not irrelevant...an ancestor has even more reputation to protect, is more tapu, has more mana.
Neither party could adequately advise the Court on this issue, unsurprisingly, given neither Mr Ellis nor the complainants were Māori.24 Even so, Glazebrook and Williams JJ later raised the
19 Kate Mackay “Peter Ellis, Tikanga and a Precedent For Posthumous Appeals” (30 September 2020) Equal Justice
Project <www.equaljusticeproject.co.nz>
20 Ellis, above n 2 at [1]-[4].
21 At [1]-[4].
22 Ellis v R [2019] NZSC Trans 31 at 20 (“First Hearing”).
23 At 52.
24 Ellis, above n 2, at [80].
point again – this time both making statements conveying that tikanga was “obviously” part of the common law more generally.25
At the hearing’s conclusion, in response to Winkelmann CJ’s request for written submissions on the tikanga issue, the parties requested a three-week adjournment for preparation.26 The Court later requested submissions on whether tikanga might be relevant to the Court’s decision and, if so, how it should be considered.27 Subsequently, the parties convened a wānanga of tikanga experts to produce a Statement of Tikanga.28 In September 2020, the Court issued a results judgment allowing the appeal to continue.29 In 2022 the Court’s reasons for allowing the appeal were released, the Ellis judgment contains those reasons.
B The Court’s Reasons
The Supreme Court provided split judgments on the appeal’s outcome and the issue of tikanga. O’Regan and Arnold JJ did not consider Ellis a suitable case to make general pronouncements about the latter, however, the majority did precisely that.30 This was hardly surprising given their prompts for counsel to address tikanga in the first place.
The majority held that the “colonial tests” for incorporation set out in Loasby should no longer apply.31 Instead, they affirmed tikanga was simply part of the common law – and broadly stated the relationship between tikanga and the common law will evolve contextually, on a case-by-case
25 First Hearing, above n 22, at 54. Williams J said, “Obviously, we’ve got to the point where the common law has
got a Māori flavour in it in Aotearoa.” Glazebrook J added, “Isn’t it a matter of law though...given that we are in Aotearoa, given that we have the Treaty, given that we have statements, at least both extrajudicially and otherwise, that tikanga should be part of the common law generally?”
26 First Hearing, above n 22, at 67.
27 Ellis, above n 2 at [34].
28 At [37]. The Statement of Tikanga was filed as an agreed statement of facts pursuant to s 9 of the Evidence Act 2006.
29 Peter Hugh Mcgregor Ellis v R [2020] NZSC 89.
30 Ellis, above n 2, at [281] per O’Regan and Arnold JJ (dissenting).
31 At [113]-[116] per Glazebrook J, [177] per Winkelmann CJ and [260] per Williams J.
basis.32 This aligns with the “more modern” approach first conceived by Glazebrook and Wild JJ in Takamore (CA).33
The majority agreed with the Statement of Tikanga that there was an interest in Ellis’ reputation and mana (prestige) that remained beyond his death, and the case had not yet reached a state of ea (resolution).34 These principles were weighed alongside other considerations in an overall analysis of whether continuing the appeal would “promote the interests of justice” – for the majority, the answer was yes.35
This decision marks a significant transition in how tikanga interacts with the common law.36 The crucial implication is that tikanga will influence the law wherever it is relevant in the circumstances, as opposed to when the “colonial tests" for incorporation are met (as had previously been the Court’s approach for over a century).
III The “Colonial Approach” to Tikanga in the Common Law
When the majority in Ellis refer to the “colonial tests” for incorporation, the term “colonial” is used presumably to denote the period between New Zealand’s establishment as a colony in 1840, and its effective independence in the early 1920s. In this section, I discuss two “colonial” cases in depth: Loasby and Arani. First, I briefly outline the earliest interactions between Aotearoa’s first and second laws, beginning with their initial collision in 1840.37
32 At [116] per Glazebrook J, [182] per Winkelmann CJ and [263] per Williams J.
33 Takamore (CA), above n 15, at [255] per Glazebrook and Wild JJ.
34 Ellis, above n 2, at [128] per Glazebrook J, [146]-[147] per Winkelmann CJ and [185] per Williams J.
35 At [7].
36 See [127] per Glazebrook: “I stress that the common law is in a state of transition.”
37 Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1 at 6.
A Colonial Legislative and Judicial Policy
Tikanga was not displaced or extinguished following the assertion of British Sovereignty and imposition of English law in New Zealand.38 However, it was gradually supplanted by legislative and judicial initiatives, which led to the systemic destruction of tikanga as a “separate, parallel system of law”.39 Some legislative references to tikanga were more pernicious than denial, for they aimed to facilitate the extinguishment of tikanga altogether.40 Other policies were premised on an underlying strategy of “amalgamation, assimilation and integration upon Māori communities”.41 The ultimate pursuit, as described in those policies, was that “Maori be brought to yield a ready obedience to the laws and customs of England” in order to achieve the “civilization of the Native Race”.42
For the most part, the common law was also a destructive instrument of colonisation, another route to displace tikanga from the state legal system entirely.43 Although some early courts recognised Māori custom, this treatment was rare and significantly constrained. Māori customary interests in land were recognised in Symonds.44 Then in Baldick v Jackson, Stout CJ accepted that Māori had rights to collect whale carcasses.45 Later, courts also recognised specific tikanga customs and practices; two instances commonly cited are Loasby and Arani. I now explain each case in turn.
38 See the English Laws Act 1858 which deemed English statute and common law to be in force from January 14, 1840, but only so far as applicable to the circumstances of the...colony.
39 Dame Helen Winkelmann, Chief Justice of New Zealand “The power of narrative – shaping Aotearoa New Zealand’s public law” (speech to Public Law Conference, Dublin 6-8 July 2022) at 13; Philip Joseph, Tikanga Māori and the Law” in Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021)105 at 109.
40 Michael Belgrave Mäori Customary Law: from Extinguishment to Enduring Recognition (unpublished paper for the Law Commission, Massey University, Albany, 1996) at 50. For further discussion see Williams, above n 37, at 7; and 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 13.
41 David Williams, “Justiciability and Tikanga: Towards “Soft” Legal Constitutionalism” (2021) 29 NZULR at 666. 42 Native District’s Regulation Act 1858; Native Exemption Ordinance 1844. For further discussion see Philip Joseph, above n 39, at 118.
43 John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” (2008) 12 Journal of Pacific Law 56 at 61; See the infamous Wi Parata v Bishop of Wellington SC 1877 3 NZ Jur (NZ) 72.
44R v Symonds (1847) NZPCC 387 (SC). See Chapter 5.
45 Baldick v Jackson (1910) 30 NZLR 343 at 345. This right was based on art 2 of The Treaty of Waitangi, rather than the pure common law.
B Revisiting Public Trustee v Loasby
Loasby, from its determination in 1908 to its apparent abandonment in 2022, paves an interesting path worth discussing in depth. Here, I am not conducting a legal history project per se. Instead, I will investigate whether aspects of Loasby should have been incorporated, or at least considered, by the Supreme Court in their pronouncements on tikanga in Ellis.
Heard by Cooper J in the Supreme Court,46 Loasby concerned a pakeha grocer’s claim against the Public Trustee, who were administering the estate of Hamuera Tamahau Mahupuku, a prominent Māori chief.47 Having supplied goods (including food, alcohol and cigarettes) for the deceased’s tangi, Loasby sought an order to recover the debt from the deceased’s estate.48 At English common law, only “reasonable funeral expenses” could be paid from a deceased’s estate, and to Loasby’s disadvantage, the expense of even a tombstone was often considered to unreasonable at English common law.49 Instead, he relied on Māori custom for repayment.
Upon hearing Loasby’s argument, Cooper J held the Māori custom of tangihanga50 was “to be recognised by the Court as law”.51 In doing so, he formulated his own test for how tikanga could be recognised in the common law, as “no decision in the English Court [could] be directly on point”.52 Applying his test, Cooper J held that Loasby’s costs could be treated as funeral expenses on the basis of Native custom.53
However, Loasby’s appeal failed on a second procedural issue; Loasby had no cause of action against the Public Trustee, as Arete Mahupuku, wife of the deceased, had ordered the tangihanga supplies from Loasby. Therefore, although tikanga was recognised as giving rise to a right to reimbursement, Loasby had no cause of action against the Public Trustee to enforce that right.
46 Now the High Court.
47 Loasby, above n 5, at 804.
48 At 804.
49 At 802, citing Knight v Knight 11 VLR 689.
50 A funeral lasting many days, usually on ancestral lands, at which guests are hosted by the deceased’s wider family.
51 Loasby, above n 5, at 801.
52 At 806
53 At 806.
There are a few aspects of Loasby warranting further discussion. The first relates to the establishment of Copper J’s test for recognising “Māori custom”.54 Cooper J began by acknowledging that “in connection with Māori rights to Native land, Māori Custom must be followed”.55 Noting that for personal property there were no New Zealand cases or statues relating to Māori custom, Cooper J postulated his own bespoke test for recognition in the common law.56
Cooper J’s three-part test asked:57
Cooper J declined to apply the stricter tests for the recognition of English local custom, as was suggested by the litigants (who cited a test derived from the Case of Tanistry).58 Instead, he asserted that “no decision in the English Court [could] be directly on point” for resolving issues relating to customs still followed by Māori.59 The resulting test was formulated for application to the unique circumstances of Aotearoa New Zealand.
His first requirement, (i), was treated as a question of fact proved on the evidence given.60 He acknowledged it was both Māori custom for the tangi to be of proportionate size and duration to the prominence of the deceased, and for the associated costs to be levied from the deceased’s
54 At 806.
55 At 806, citing Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561 (PC) and the Native Rights Act 1865.
56 At 806.
57 At 806.
58 At 804. The litigant cited Salmond on Jurisprudence (1st ed, 1902) at 140-145, which refers to requisites for valid custom according to The Case of Tanistry (1608) Davies 28, 80 ER 516 (KB). This case concerned whether Irish customary law (brehon) could be recognised following the English conquest of Ireland. The custom of tanistry, which required male inheritors of land to engage in armed conflict against their male relatives to prove their worthiness, was not recognised by the English court.
59 At 806.
60 At 806
property.61 Addressing the second requirement (ii), Cooper J asked whether any statute existed forbidding said custom – which there was not.62
Under (iii), Cooper J considered whether the custom was reasonable in the circumstances. Importantly, he articulated that the Court’s assessment of reasonableness should be measured according to what is “usual and proper” for Māori, rather than pakeha.63 This is consistent with his earlier statement, that: 64
... it is no objection to a custom founded ... that it is not conformable to the common law of the land, for it is of the very essence of the custom that it should vary from it.
In conceiving this consideration, Cooper J drew from dicta of the Privy Council decision Mullick v Mullick, which concerned what sum would be reasonable to expend under a Hindu testator’s will in accordance with Hindu custom.65 He acknowledged Lord Wynford’s observation that:66
... the interest of sovereigns, as well as their duty, will ever incline them to secure, as far as it is in their power, the happiness of those who live under their government; and no person can be happy whose religious feelings are not respected.
Incorporating this sentiment, Cooper J concluded the elaborate tangihanga was reasonable according to Māori custom.67 Although not made explicit, his conclusion appears to be drawn from the fact Mahupuku’s tangi was reasonable in its size and cost, considering his rank and influence.68 He also acknowledged that prohibiting payment of tangi expenses from the deceased’s estate
61 At 805.
62 At 805.
63 At 807.
64 At 806.
65 At 806-807, citing Mullick v Mullick (1829) 1 Knapp 245.
66 At 806-807.
67 At 807.
68 Laura Lincoln “Takamore v Clarke: An Appropriate Approach to the Recognition of Māori Custom in New Zealand Law?” (2013) 44 VUWLR 141 at 155.
would have risked his tangi not being held altogether.69 He said such an outcome would “seriously wound the feelings” of Māori and be of great insult to the deceased’s memory.70
Notably, the Public Trustee argued that tangihanga was unreasonable according to Pakeha standards because it “tends to impoverish and to lower the morals of the Maoris, and is contrary to their own interests”.71 However, that argument was unsuccessful. This appears to be because Cooper J’s requirement that custom be reasonable “taking the whole of the circumstances into consideration” is directed towards considering whether it would be reasonable to apply the pleaded custom in the specific circumstances. This is different from an inquiry into whether the custom itself is substantively reasonable. Moreover, whether it is reasonable to follow custom in the circumstances should consider what is “usual and proper” for Māori.
This interpretation of Cooper J’s reasonableness consideration follows logically from the fact that Māori custom, in substance, will always be considered “usual and proper” for Māori; tikanga is the “right” way of doing things.72 However, whether and how a tikanga practice ought to apply to a specific situation could be contentious for Māori. Furthermore, considering Cooper J declined to apply Tanistry, it is sensible to conclude that his reasonableness criterion does not reflect a desire to draw on the English doctrinal rule that custom itself be substantively reasonable.73
Instead, I suggest that Cooper J’s reasonableness consideration served a wholly practical purpose in the New Zealand context. As Māori-Pakeha relations increased the courts would require some metric to determine which law was best to apply to a given situation. The metric Cooper J appears to adopt is whether Māori would consider it appropriate to follow a particular tikanga practice, or whether that practice ought to be departed from or applied differently in the circumstances. If the latter, then the court might consider it appropriate for the common law to assist in resolving the dispute.
69 At 18.
70 Loasby, above n 5, at 806.
71 At 802.
72 Law Commission 2009, above n 9, at [73].
73 Loasby, above n 5, at 804. Cooper J declined to apply the test for English custom established in Tanistry. This test included a requirement that custom be substantively reasonable, as will be further explained in the following section.
In Summary, Cooper J developed a novel set of requirements for recognising Māori custom in Aotearoa New Zealand’s common law (hereinafter referred to as the Loasby test). Upon fulfilment of those requirements, Cooper J declared that the custom itself “ought to be recognised by the Court as law”.74
C Revisiting Arani v Public Trustee
In Arani, the Privy Council recognised adoptions according to “the ancient law of Maori custom”.75 Their Lordships acknowledged that Māori custom had developed to allow for the adoption of pakeha children by Māori, meaning the pakeha claimant could succeed to her parent’s Māori land interests alongside her Māori siblings.76 The Privy Council held the Adoption of Children Act 1895 did not interfere with “the right of the Maori to adopt according to his own custom”.77 In fact, because the Act did not explicitly prohibit such custom, it gave Māori “further rights” to adopt according to both Māori and state law.78
Their Lordships accepted the existence of Māori customary adoptions, based on evidence heard in previous Native Land Court hearings, and their general “notoriety” and acceptance amongst tribes.79 They also accepted enough had been done in the child’s case to “make the adoption good according to Māori custom”.80 The central issue for the Court was whether a pakeha child was eligible for customary Māori adoption.81
The Privy Council’s treatment of Māori custom is very similar to Cooper J’s approach. It asks whether the custom existed as a matter of fact, and then recognises custom where it is not forbidden by statute. Although the Court did not cite Loasby or Cooper J’s reasonableness consideration,
74 At 801.
75 Arani, above n 5, at 204.
76 At 204.
77 At 203-204.
78 At 203-204.
79 At 201.
80 At 201.
81 At 201
their reasoning demonstrates careful consideration of whether applying Māori custom in the child’s specific circumstances would be appropriate and reasonable to Māori sensibilities.
Shaunnagh Dorsett has written that recognition of tikanga in the common law across settler colonies was simply a matter of proof of existence (by evidence), and lack of extinguishment.82 This is essentially the approach taken in both Loasby and Arani, as neither decision assesses tikanga based on its conformity with English legal or moral standards. Dorsett contrasts this approach with one that only recognises the enforceability of tikanga where it conforms to common law rules on custom.83 The latter approach, just described, is how English courts treated the customs of newly-acquired local boroughs.
In Arani, their Lordships accepted that Māori custom, unlike English local custom, was “not a fixed thing”, instead it could adapt to the changed circumstances of Māori over time.84 Their Lordships found that since British arrival, Māori custom had evolved to allow for adoption of pakeha children by Māori. This treatment of tikanga therefore goes one step further than Cooper J’s, because it recognises that tikanga - and its reasonable application to different circumstances - will necessarily evolve with the practical requirements of Māori.
On this issue, Lord Phillimore said:85
...the Māoris as a race may have some internal power of self-government enabling the tribe or tribes by common consent to modify their customs and that the custom of such a race is not to be put on a level with the custom of an English borough or other local area which must stand as it always has stood, seeing that there is no quasi-legislative internal authority that can modify it.
82 Shaunnagh Dorsett “The Displacement of Tikanga - A Brief Jurisprudential Afterword” in Juridical Encounters:
Māori and the Colonial Courts, 1840-1852 (Auckland University Press, 2017) 271 at 277.
83 At 277.
84 Arani, above n 5, at 204.
85 At 204-205.
By acknowledging the dynamic nature of tikanga, the Privy Council also clearly distinguished Māori custom from the local custom of English boroughs. Tanistry provided a set of requirements to assess the customs of newly acquired boroughs for incorporation into English common law.86 Local customs only survived if they met strict requirements of reasonableness, certainty, usage from time immemorial, and non-extinguishment.87 In effect, local custom was only upheld where it accorded with the values of the invading English system. This posed a steep challenge for the legal recognition of custom, in contrast to Loasby and Arani.
Furthermore, where local custom was recognised, it was made to “stand as it always had stood”. This form of recognition was premised on the assumption that newly conquered boroughs would soon amalgamate into English society. In contrast, it is well accepted that Māori continued to live according to tikanga in spite of British colonisation. Lord Phillimore’s dicta reflects judicial acceptance (at the then highest level) of Māori “quasi-legislative internal authority” to develop their laws as necessary, thus affirming the continuing exercise of Māori tino rangatiratanga (as we would now refer to it).
Admittedly Loasby and Arani carried little direct effect for Māori because both cases were brought by pakeha litigants.88 Tikanga was recognised in a de jure sense, but only to achieve some practical utility for pakeha. This unfortunate feature of both cases reflects the colonial context in which they were decided. My interest in Loasby and Arani, is in how each cases recognises tikanga custom as law. As I will develop in Chapter IV, in both cases tikanga was recognised as a source of enforceable rights or obligations, capable of overriding other common law rules and precedents.
86 Paul McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press,
Oxford, 1991) at 87.
87 At 87.
88 A point raised in Ellis, above n 2, at [93] per Williams J.
IV Evolution of the Modern Approach
In Ellis, Glazebrook J acknowledged that the modern approach had not developed in a vacuum, but rather in the context of the Crown’s increasing recognition of Te Tiriti o Waitangi obligations and statutory engagement with tikanga over time.89
Here I briefly trace those developments, before discussing the Takamore line of cases in some detail. Takamore was a critical precursor to Ellis. Firstly because the Court of Appeal’s decision, laid the foundations for the new approach to tikanga confirmed in Ellis. Additionally, the Takamore decisions demonstrate the extent of judicial variability regarding tikanga’s treatment in the common law. These cases left tikanga’s place in the common law, and particularly the status of Loasby, in a considerable state of disarray and confusion. This second aspect of Takamore will be discussed in Chapter III.
A The Māori Renaissance
For most of the 20th Century, New Zealand’s public landscape lacked Māori influence. The State’s legal system fared even worse: “Te Tiriti was, at best, a footnote in legal education and tikanga was entirely absent”.90 Then beginning in the 1970s, in a period termed the “Māori Renaissance”, Māori culture, language and law experienced a significant revival.91 The Treaty became increasingly cognisable in law following the passing of the Treaty of Waitangi Act 1975.92 The proliferation of legislative Treaty clauses in the 1980s, referring to the “principles of the Treaty of Waitangi”, gave birth to a new era of Treaty jurisprudence in the Courts.93
89 At [109] per Glazebrook J.
90 Natalie Coates “The Rise of Tikanga Māori and Te Tiriti o Waitangi Jurisprudence” in John Burrows and Jeremy Finn (eds) Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) 65 at 71.
91 Dawson, above n 43, at 45.
92 Which established an extensive settlement process between the Crown and Māori, facilitated by the Waitangi Tribunal.
93 See the Conservation Act 1987, s 4 and State-Owned Enterprises Act 1986, s 9.
As New Zealand “abandoned its colonial mindset”,94 tikanga principles were inserted into statutory regimes for family law, the environment and most significantly Māori land law.95 Where legislative recognition of tikanga was lacking, Māori turned to courts to argue their cases at common law. In a “burst in Treaty-related jurisprudence”, and in line with developments in Canada and the United States, New Zealand embarked on a journey of re-fashioning its long-disregarded law on the customary rights of indigenous peoples in British Colonies.96
Two inter-related common law doctrines emerged from this jurisprudence: the doctrine (or presumption) of continuity, and the doctrine of Native Title.97 The latter recognizes that Māori have customary rights to land,98 and by implication, the doctrine extends to recognise proprietary rights to use associated physical or environmental resources (such as rights to hunt, fish or gather on those lands).99 The former presumes the continuity of indigenous laws more generally.100 It encompasses all customs not concerned with interests or rights in property, which has been referred to as “general” or “stand-alone” custom.101
Williams describes the post-1970s era of recognition for Te Tiriti, Native title, and (to a limited extent) tikanga, as constitutive of a burgeoning “third law”.102 Tracing a number of modern legal
94 Joseph Williams “ ‘Too Far, Too Soon’ : Speech Given on 3 May 2023 at the Wānanga on Tikanga and the Law”
(2023) 4 Amicus Curiae 599 at 600.
95 Dean Knight and Mihiata Pirini “Ellis, tikanga Māori and the common law: relations between the first, second and third laws of Aotearoa New Zealand” (2023) Public Law 557 at 559 citing the Sentencing Act 2002 s 27; Care of Children Act 2004 s 5; and Resource Management Act 1991 ss 6(e), 7(a) and 8.
96 Paul McHugh Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self- Determination (Oxford University Press, New York, 2004) at 422 as cited in Emma Gattey “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?” (dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago, 2013) at 28.
97 Law Commission, above n 14, at 136; Campbell v Hall [1774] EngR 5; (1774) 98 Eng Rep 1045.
98 See Ngati Apa, above n 1.
99 See Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC). This case recognised a Māori litigant’s customary fishing rights according to the doctrine of Native Title, to squash their conviction under the Fisheries Act 1983.
100 Paul McHugh "Aboriginal Title in New Zealand: A Retrospect and a Prospect" (2004) 2 NZJPIL 139 at 144. 101 Law Commission, above n 14, at 225. This dissertation is less concerned with the rights that arise in relation to property. Instead, I focus on rights, sourced in tikanga, to carry out a specific practice or custom. This is what “general” or “stand-alone” custom refers to.
102 Williams, above n 37, at 12.
developments, he describes a new type of interaction between Aotearoa’s first and second laws.103 In this era, interactions between first and second law are premised on the permanent transformation of our legal system.104 The third law is a resulting hybrid of this interaction; a distinct Lex Aotearoa, perpetuating the survival of both.105
However as observed extrajudicially by Winkelmann CJ, the story of stand-alone tikanga in New Zealand’s common law has been one of delayed development compared to Te Tiriti and Native title.106 It was not until the Takamore line of cases, beginning in 2009, that tikanga re-emerged in a new type of jurisprudence.107
B Takamore v Clarke – The Transition Begins
The Takamore cases concerned a dispute over the burial place of a Māori man, Mr James Takamore.108 Before his sudden death, Mr Takamore had resided in Christchurch with his wife, Ms Clarke, and their children for over 20 years. Upon his death, Mr Takamore’s whānau (including his mother, sister and other close relatives) immediately travelled from Tūhoe country to Christchurch. Deliberations between these relatives (the “Takamores”) and Ms Clarke broke down, which resulted in Mr Takamore’s body being taken North and buried by the Takamores at Kutarere urupa (burial ground). The Takamores acted without Ms Clarke’s consent, who - as executor of Mr Takamore’s will - had made alternative arrangements for his burial in Christchurch.
Ms Clarke launched proceedings in the High Court, seeking an order for her husband’s body to be exhumed and reburied in Christchurch. The primary issue was who had the authority to determine where Mr Takamore would be buried. As New Zealand statute is silent on the issue, it was left for determination according to common law.
103 At 11-12.
104 At 12.
105 At 12.
106 Winkelmann, above n 39, at 13.
107 Williams, above n 37, at 15.
108 These facts are taken from Takamore (HC), above n 15.
The Takamores relied on Tūhoe tikanga, explaining they followed Māori custom by making a tono (claim) to the tupapaku (body) of James Takamore and taking his body after consensus between the families was not reached.109 They argued their tikanga could be recognised in the common law, thereby constituting legal authority to take possession of the deceased’s body.
The Takamore’s claim failed in the High Court.110 After considering the Loasby test,111 Fogarty J determined Tūhoe custom could not be recognised as free-standing law or custom.112 Therefore, the Takamores had no legal authority to take possession of the body.113 Instead, his Honour upheld the executor’s right to obtain possession of the body and determine its final location for burial, in favour of Ms Clarke.114
In the Court of Appeal, Glazebrook and Wild JJ (providing the majority judgement) applied what they considered to be the traditional test for incorporating tikanga into the common law.115 Quite significantly, the majority did not apply Cooper J’s test set out in Loasby, but applied a test for the recognition of English local custom derived from Tanistry.116 Like Fogarty J, the Court also found tikanga could not be recognised as free-standing law, and so the executor rule at common law was upheld.117
However, Glazebrook and Wild JJ then took an unprecedented step to suggest a “more modern approach” to tikanga.118 Under this approach, the Court would not rely on the “strict rules of the colonial times”.119 Instead, tikanga would be integrated into the common law as a relevant
109 Takamore (HC), above n 15, at [56].
110 At [90].
111 At [81] (albeit problematically – as will be discussed in Chapter 3).
112 At 525.
113 At 525.
114 At [22] and [90].
115 See the judgment of Chambers J (dissenting) at [266]. Chambers J did not see necessary to proclaim on the substance of tikanga. I will discuss his Honour’s judgment briefly in Chapter III.
116 At [109].
117 At [166]-[167], [258].
118 At [254].
119 At [254].
consideration for decision-making where the facts of a case required it.120 If so, tikanga would be considered in balance with all other relevant considerations “as far as reasonably possible”.121 Applying this approach, their Honours modified the executor’s common law right to decide burial arrangements by a requirement the executor take into account any relevant cultural considerations relating to the deceased’s heritage. In this case, that included Tūhoe customs because Mr Takamore was Māori. Ultimately the majority considered that Ms Clarke was entitled to make the final decision about her husband’s burial, given negotiations had broken down between the parties. the Takamore’s appeal was dismissed.122
Glazebrook and Wild JJ’s “more modern” approach, established the foundations for the approach to tikanga confirmed by the majority in Ellis (on which Glazebrook J also sat). Before moving to Ellis, however, the next section concludes the story of Takamore by describing the Supreme Court’s approach in that case.
The Supreme Court was unanimous in dismissing the Takamore’s appeal of the Court of Appeal’s decision.123 The majority of the Court held Ms Clarke, as executor, should determine Mr Takamore’s place of burial.124 In a notable departure from the courts below it, the Court did not consider either the Loasby or Tanistry tests for recognising tikanga. Instead, picking up the “more modern” approach of the Court of Appeal, the Supreme Court agreed that tikanga should be accommodated in this case, albeit to varying degrees demonstrated by the fact the Court split three– five on this issue.
The majority applied a similar approach to Glazebrook and Wild JJ in the Court of Appeal holding that due to Mr Takamore’s Māori heritage, the executor was required by the common law to consider Tūhoe burial practices when making their final decision.125 They said this was on the
120 At [254]-[255].
121 At [256].
122 [260]-[261].
123 Takamore (SC), above n 15, at 734.
124 At [164] per Tipping, McGrath and Blanchard JJ.
125 At [164].
basis that the common law required reference to important cultural, spiritual and religious values.126
The minority judgments were even more accommodating of tikanga. Elias CJ preferred a solution where the High Court was the final decision-maker and added that regardless of one’s cultural or ethnic background, “Maori custom according to tikanga is...part of the values of the New Zealand common law.”127
William Young J went even further, stating the “decisive consideration” in this case was tikanga.128 He disagreed the Court could choose any final decision-maker, instead a more appropriate solution would be facilitating a decision-making process according to Māori custom, “which can, in the end, only be resolved by consensus, acquiesce or submission”.129 Notably, William Young J’s solution is predicated on an appreciation of collective decision-making processes according to tikanga.
Takamore forged a new pathway for the development of tikanga in the common law. Although this new method of recognition ultimately made no difference to the Takamore’s legal claim, the appellate court decisions presaged a significant shift in how New Zealand’s highest courts would treat tikanga in Aotearoa New Zealand’s common law.130
V The Law in A State of Transition
A The Majority Decision in Ellis
In 2022, a majority of the Supreme Court in Ellis confirmed a new, modern approach to recognising tikanga in the common law. In doing this, the majority determined that the “colonial
126 At [164].
127 At [94].
128 At [213].
129 At [213].
130 Carwyn Jones “Lost from Sight: Developing Recognition of Māori Law in Aotearoa New Zealand” (2021) 1 Legalities 162 at 173.
tests” for recognition of tikanga ought no longer to apply. However, all three Judges emphasised it would be impossible to formulate a new test to govern tikanga’s influence on the common law, and instead that influence should develop incrementally.131 In effect, tikanga will now influence the common law wherever it is relevant in the circumstances rather than when the colonial tests for incorporation are met.
Glazebrook J’s comment that the law is now in a “state of transition”, reflects the Court having moved away from the “colonial approach” to tikanga, in favour of the approach described in Ellis. From hereon I describe their approach as the “modern approach”.132 The modern approach is broadly consistent with Te Tiriti o Waitangi, and in many aspects reflects the common law “catching up” with actions already approved by Parliament.133
B Tikanga as the source of legal principles, concepts and processes
In formulating their modern approach to tikanga, the majority in Ellis drew heavily from the approaches taken in Takamore, and explicitly cited Elias CJ’s statement that tikanga is “part of the values of the common law”.134
Glazebrook J offered some tentative comments about the approach’s potential application in the common law. Her Honour suggested tikanga principles may, in some cases, be a controlling or relevant consideration (in the public law sense) and, in other cases, may influence general developments in the common law (as was the case in Ellis).135 Williams J echoed this, adding that where areas in the common law are developing based on principle, it may often be appropriate for tikanga and the common law to engage in a “mutually advantageous dialogue”.136 Therefore, whether tikanga will influence the common law will depend on the factual and legal context of the
131 Ellis, above n 2, at [111] per Glazebrook J, [179]-[183] per Winkelmann CJ and [261] per Williams J.
132 This aligns with the language adopted by the majority in Ellis. At [109] Glazebrook J refers to, “The modern recognition and application of tikanga principles by the common law.” At [177] Winkelmann CJ describes the “colonial” tests as “inappropriate for the context of modern Aotearoa New Zealand law”. At [257] Williams J refers to, “modern New Zealand law and policy.”
133 Mihiata Pirini “Māori Legal Issues in the Supreme Court, 2013-2023” (forthcoming) at 18.
134 Ellis, above n 2, at [94] per Glazebrook J and [256] per Williams J.
135 At [118].
136 At [268]-[265].
case.137 Notably, as was implied by Elias CJ in Takamore, the common law will not require litigants to have Māori heritage for tikanga to be relevant (the case of Ellis being a fine example this). Instead, Williams J noted that tikanga’s relevance could depend on any number of factors, left up to parties to raise and argue themselves.138
Glazebrook J also suggested tikanga principles could influence new forms of legal vocabulary, legal concepts and intellectual frameworks.139 Winkelmann CJ likewise affirmed that tikanga can provide different questions to ask when applying statutory tests, as well as new vocabulary for existing concepts in the common law and therefore “fresh insights” too.140
The practical steps taken by the legal parties in Ellis, who held a wānanga of experts to produce an agreed Statement of Tikanga, also demonstrated a process more consistent with tikanga - specifically, the deliberative mechanisms used by Māori to reach a position collectively.141 It seems a decade later, William Young J’s suggestion in Takamore (SC) that tikanga ought to be recognised in a way that accords with tikanga processes, is finally being realised.
Carwyn Jones reflects that in Ellis, “we can see further steps being taken for Māori legal forms, processes, and principles to become more visible as part of New Zealand law”.142 Jones’ classification provides a helpful summation of how tikanga was recognised in Ellis; as a source of legal principles, forms (which refers to tikanga concepts, vocabulary and frameworks) and processes, each carrying varying influence in the common law depending on the context.
137 At [263]-[264].
138 At [263].
139 At [118].
140 At [176].
141 Jones, above n 130, at 183.
142 At 164.
C A Tikanga Renaissance
The transition confirmed in Ellis also evidences a broad cultural shift to incorporate tikanga into Aotearoa’s legal system through institutional initiative.143 Tikanga is increasingly drawn on in the development of the interstitial common law144 – that is, the law developed by judges interpreting statues and regulations. The judiciary has also implemented a training programme for its judges to become more proficient in tikanga concepts and te ao Māori (the Maori World).145
Whilst the origins of these developments lie with the political efforts of Māori and legal pioneers onwards from the 1970s, the rising tikanga and Te Tiriti jurisprudence is being heralded by New Zealand’s highest Courts.146 David Williams observes a number of superior court decision that indicate a “sea change” in the legal and constitutional status of tikanga and Te Tiriti, initiated by permissible interstitial law-making and common law development.147 Winklemann CJ, writing extrajudicially, said these cases “set the stage for further evolution in Aotearoa’s treatment of the Treaty and tikanga Māori, particularly in the public law sphere”.148 Ellis is consistent with this trend, given the majority’s comments on tikanga principles potentially serving as relevant considerations for public decision-makers.
Ellis is also significant because the transition it confirms emerged from an initiative of New Zealand’s highest court (or at least a majority of it). As explained above - not only was it at the majority’s suggestion that the parties submit arguments on tikanga, but their questions also heavily implied that tikanga ought to be considered in the general development of the common law. Ellis therefore sits in contrast to the vast majority of Tikanga/Te Tiriti cases, which respond to legal claims addressing tikanga or Te Tiriti issues raised by Māori litigants. Outside of the Courts, the Council of Legal Education has resolved to incorporate tikanga into the core teaching programme
143 Joseph, above n 39, at 123.
144 See Trans-Tasman Resources Ltd v Taranaki Whanganui Conservation Board [2021] NZSC 127 [2021] 1 NZLR
801; Ngāti Whātua Ōrakei Trust v Attorney-General [2018] NZSC 84; Cowan v Cowan [2022] NZSC 43.
145 Dean Knight and Mihiata Pirini, above n 95, at 564.
146 See Natalie Coates “The Rise of Tikanga Māori and Te Tiriti o Waitangi Jurisprudence” in John Burrows and Jeremy Finn (eds) Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) 65 147 David Williams, above n 41, at 652. “Sea change” denotes a substantial change in perspective.
148 Winkelmann, above n 39, at 14. See Mercury NZ Ltd v Waitangi Tribunal [2020] NZHC 654; Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181.
of all law school’s in New Zealand.149 Altogether these developments show tikanga is now finally undergoing its own “renaissance” fifty years after the first more general Māori renaissance.150
VI Conclusion
This Chapter has traced the Court’s transition from a “colonial” to a “modern” approach to tikanga in the common law. Evolving in in the post-colonial context, the modern approach gives cognisance to tikanga principles, forms and processes in a manner that all New Zealander’s can benefit from. First conceived in Takamore, the modern approach confirmed in Ellis brings tikanga’s treatment in the common law into alignment with its treatment in legislation, and more broadly, Māori legal issues more broadly in the 21st century. Undeniably, the development of modern approach to tikanga is a valuable objective. My dissertation considers whether, in pursuit of that objective, the Supreme Court took a misstep in their treatment of the colonial caselaw.
149 Joseph, above n 39, at 123.
150 Joseph, above n 39, at 105.
CHAPTER III
TREATMENT OF LOASBY AND ARANI IN THE MODERN JUDICIAL ERA
I Introduction
Since its determination more than a century ago, Loasby has drawn mixed reviews. It has been approved, applied, misinterpreted, overlooked, and (most recently) discontinued, by various courts. Conversely, Arani has been heavily cited by judges, but the significance of its approach has been rarely acknowledged to the extent described above. This chapter critically analyses this mixed treatment, with a view to later discuss the implications of Loasby’s overruling.
II Soft Approval of Loasby
Loasby was cited with approval in Huakina Development Trust v Waikato Valley Authority ,151 and Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority.152 In both cases, Cooper J’s test was referred to as the criteria for whether tikanga could qualify as part of the common law in New Zealand.153 In Huakina Harrison J said, affirming Loasby, “thus it may be said that customs and practices which include spiritual elements are cognisable in a court of law provided they are properly established, usually by evidence”.154 These cases supported Dorsett’s observation that tikanga customs and practices can be recognised by courts upon proof of existence, and bar explicit legislative extinguishment.155
151 Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC).
152 Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority [2004] 2 NZLR 201 (HC).
153 Proprietors of Parininihi, above 152, at [18]; Huakina, above n 151, at [215].
154 At [215].
155 Dorsett, above n 82, at 277.
III Misapplication by Fogarty J in Takamore (HC)
Loasby was cited and considered in Takamore (HC), where the Takamores relied on Tūhoe custom to justify their taking possession of the deceased’s body. However, the Loasby test appears to have been misapplied by Forgarty J in this case.
Fogarty J misconstrued Cooper J’s reasonableness requirement to be a question of “whether or not the custom is consistent with other principles of common law”.156 Fogarty J reasoned that tikanga prioritised the collective will of Tūhoe, which was incompatible with the common law principle of individual freedom.157 Additionally, because Mr Takamore had expressed personal views regarding his burial conflicting with Tūhoe custom, Fogarty J concluded it would be unreasonable to apply that custom to his body.158 Quite problematically, this interpretation misses the point that the “very essence of custom” is that it should vary from the common law. It fails to account for Cooper J’s construction of reasonableness as depending on what is “usual and proper” for Māori.
IV Overlooked by the Appellate Courts in Takamore
A The Court of Appeal’s application of Tanistry
Fogarty J’s approach appears to have initiated a recurring pattern of misinterpretation or misapplication of Loasby by courts thereafter. In the Court of Appeal, prior to suggesting their “more modern” approach to tikanga, Glazebrook and Wild JJ considered whether the Takamore’s tikanga as custom claim could succeed.
156 Takamore (HC), above n 15, at [82].
157 At [81]-[89].
158 At [81]-[89].
The majority did not apply Cooper J’s distinct test, despite its application in the High Court, and legal commentary suggesting it was the appropriate test to apply in New Zealand.159 Instead, citing Halsbury’s Laws of England they applied the test derived from Tanistry;160
(i) Whether the custom has existed since time immemorial (the longevity requirement);
(ii) Whether the custom had continued as of right and without interruption since its origin (the continuity requirement);
(iii) Whether the custom was reasonable (the reasonableness requirement);
(iv) Whether the custom was sufficiently certain (the certainty requirement);
(v) Whether it has been extinguished by statute.
In choosing this test, the majority asserted that “by analogy with English custom, the common law also recognised customary laws of indigenous peoples in British colonies”.161 However, as explained above, it was the Privy Council’s view in Arani (a century prior) that to draw this analogy would be inappropriate. The Law Commission had also previously written at length about the unsuitability of applying Tanistry’s requirements to Māori custom, and preferred Cooper J’s test in Loasby instead.162 Why the majority asserted Tanistry was the correct approach to take remains unresolved; Tanistry had never been successfully applied in New Zealand.163 Nor did either legal counsel submit that Tanistry should apply.
159 See Linda Te Aho, Tikanga Maori, Historical Context and the Interface with Pakeha Law in Aotearoa/New
Zealand (2007) at 13: “Māori customary law therefore retains a central place in the common law of New Zealand and can be invoked subject to the requirements of Loasby.” Compare Richard Boast “Māori Customary Law and Land Tenure” in Richard Boast and others (eds) Māori Land Law (2nd edn, LexisNexis New Zealand Limited, Wellington, 2004) at 2.2.5.
160 Takamore (CA), above n 15, at [109] per Glazebrook.
161 At [109]-[112].
162 Law Commission 2009, above n 9, at [38]-[40]. Citing the work of various writers who have long acknowledged the inapplicability of Tanistry’s requirements to the customs of indigenous peoples, they said: “While the recognition of indigenous customs in accordance with the presumption of continuity is similar to the recognition in England of particular customs practised since time immemorial, it is not identical in that it allows indigenous customs to change as circumstances require”.... “Tikanga Māori should not be seen as fixed from time immemorial, but as based on a continuing review of fundamental principles in a dialogue between the past and the present.”
163 Lincoln, above n 68, at 151-153. But see Hammond J’s discussion in R v Iti [2007] NZCA 119, [2008] 1 NZLR
587 and Knowles v Police (1998) 15 CRNZ 423.
It is also clear the majority were acutely aware of the challenge Tanistry posed for the recognition of tikanga; Glazebrook J cites Arani and the Law Commission’s cautions, in her judgment.164 However, rather than adopting the more appropriate Loasby test, they “disregard that lack of suitability, and apply [a] modified [Tanistry] test regardless.”165
Glazebrook and Wild JJ appear to have applied Tanistry of their own accord, and despite the near- unsurmountable challenge this presented for the Takamores. On their analysis, Tūhoe custom authorised the use of force to remove the body, and so violated the notion of “right not might” – an application of the fundamental English legal principle of the rule of law.166 Therefore, they held Tūhoe burial custom could not be recognised in the common law because it was unreasonable.167
B Loasby or Tanistry: Which Test is Best?
Lincoln has persuasively argued the test applied Loasby was distinct and more appropriate for Aotearoa New Zealand’s circumstances.168 She explains the Tanistry test contained the added requirements of longevity, continuity and certainty, which effectively exclude the recognition of tikanga because Māori custom (in its true form) could never meet the modified tests.169
Cooper J’s reasonableness consideration is also much easier for litigants to satisfy because it does not entail judging the substance of a Māori custom against English legal or moral standards.170 Rather, it asks whether the application of Māori custom to a specific situation would be usual and proper for Māori. It therefore negates the need, as suggested by Court of Appeal, to frame the application of Tūhoe tikanga (had it been recognised as law) as an “interpersonal conflict of laws” issue.171 The majority viewed customary law as having personal application to Māori, and thus exclusively applying to “Māori inter se”.172 Whether Māori custom could be enforced against non-
164 Takamore (CA), above n 15, at [123]-[130].
165 Lincoln, above n 68, at 152.
166 Takamore (CA), above n 15, at [163]-[165].
167 At [258].
168 Lincoln, above n 68, at 150.
169 At 152.
170 At 150.
171 Takamore (CA), above n 15, at [182]
172 At [192]. With respect, this cannot have been the case given tikanga was recognised in both Loasby and Arani as applicable to Māori-Pakeha relations.
Māori was framed as an additional “conflict of laws” issue, presumably one that involved assessing whether the application of tikanga in the circumstances would be appropriate .173 Cooper J’s test obviates the need to consider this issue because it already involves the consideration of whether it would be appropriate to apply tikanga in the circumstances. However, rather than being a “conflict of laws” issue (which would inevitably invoke common law private international law rules), Cooper J’s consideration is grounded in a Te Ao Māori perspective.Fogarty and Chambers JJ (the latter in dissent in Takamore (CA)), therefore approached Takamore more similarly to Loasby than has been observed. Both framed their analysis as whether Tūhoe tikanga could be applied to James Takamore’s body.174 Although both considered that question from an English common law perspective (rather than a Te Ao Māori one) their treatment of tikanga is still preferable to Glazebrook and Wild JJ’s. This is because the judgments of Fogarty and Chambers JJ do not make pronouncements on the inherent or substantive validity of Tūhoe tikanga. As pointed out by Chambers J, the majority’s conclusion that Tūhoe tikanga is inherently unreasonable “unnecessarily” has the effect of preventing its application even in circumstances where all parties wish to adhere to tikanga.175 Similarly, Dorsett contrasts the approach of colonial courts in recognising tikanga with that of the Court of Appeal’s in Takamore.176 Under the former, tikanga is unqualified, and under the latter it is only recognised where it conforms to specific common law rules.177
This is not to say the Loasby test will always give rise to enforceable custom. In fact, the reasonableness requirement affords judges a considerable degree of discretion to apply tikanga. For example, applying the Loasby test in Takamore, one could reason the Takamore’s tono, which led to the estrangement of the deceased’s Māori children from their whakapapa, would not be
173 However, because Tūhoe custom could not be recognised according to the majority, this issue did not arise.
174 Takamore (HC), above n 15, at [90];Takamore (CA), above n 15, at [322].
175 Takamore (CA), above n 15, at [321] per Chambers J as cited in Gattey, above n 96, at 40.
176 Dorsett, above n 82, at 277.
177 Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2014] NZSC 108; (2015) 1 NZLR 1 at 33. Tikanga was not completely unqualified, for the common law would not give effect to repugnant customs (such as ones mandating torture, death, or cannibalism). However the presumption that customary laws would continue unless they were “repugnant” was not interpreted to exclude customs merely inconsistent with the common law. McHugh has argued this presumption was codified in the New Zealand Constitution Act 1852, which stated that Native custom could be recognised and maintained under English law as long as it was not repugnant to “general principles of humanity”. For further discussion see Paul McHugh “The Aboriginal Rights of the New Zealand Māori at Common Law” (LLB (Ph.D.) Dissertation, University of Cambridge, 1987).
considered “usual and proper” for Māori – or alternatively, reasonable according to tikanga principles.178 Māmari Stephens has lamented this aspect of the dispute:179
There is no doubt that tikanga, when allowed to operate as designed, can be a wonderful instrument to achieve equilibrium, but this case shows that it can create disequilibrium...in the pursuit of some larger goal of the larger collective entity.
Ultimately, determining whether the application of specific tikanga practice would be reasonable to Māori is a complex exercise. However, Loasby is useful for both litigants and judges, as it provides an appropriate starting point for parties to mount arguments about tikanga’s application in a specific situation, rather than its inherent value as law.
C The Supreme Court in Takamore: Implicitly abandoned or affirmed?
The Supreme Court in Takamore did not consider whether Tūhoe custom could be enforced as law, they side-stepped the issue entirely, except to say:180
The common law is not displaced when the deceased is of Māori descent and the whanau invokes the tikanga concerning customary burial practices, as has happened in this case.
Rather, the common law of New Zealand requires reference to the tikanga, along with other important cultural, spiritual and religious values ... as matters that must form part of the evaluation.
The Court’s statement that the “common law is not displaced” when tikanga is invoked by Māori is perplexing. Taking the Loasby and Arani approach, Tūhoe burial practices could well have been invoked to displace the applicable common law rules.181 It is unclear whether the Court’s opinion is the Loasby and Arani approach can no longer be used to displace the common law, or rather
178 Māmari Stephens “The Children of the Takamore Case and the Price of Going Home” (2017) 5 Te Tai Haruru 59
at 59.
179 At 61.
180 Takamore (SC), above n 15, at [164].
181 I develop this point in Chapter IV.
whether it views the Takamore’s argument as failing to meet the court’s tests for enforceable custom.
Ultimately, following the Supreme Court decision, tikanga’s position in the common law (as well as Loasby’s) was left in a “confused state”.182 Williams J’s view is that the Supreme Court in Takamore “implicitly abandoned” Loasby in their decision.183 In contrast, Natalie Coates suggested Takamore be read in a manner that leaves future courts open to recognising tikanga as enforceable custom according to Loasby.184 She suggested that if the custom approach fails, the Court should consider whether tikanga could alternatively be recognised as a value or relevant consideration.
To add even more confusion, I suggest Elias CJ’s judgment and extrajudicial writings shows she shared a similar view to Coates. See her statement in Takamore (SC) which has been heavily cited (footnotes removed):185
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 jurisdiction, according to their materiality in the particular case.... It is the approach adopted in Public Trustee v Loasby and, in Australia, in Manktelow v Public Trustee. Maori custom according to tikanga is therefore part of the values of the New Zealand common law.
Although often overlooked, it is worth emphasising that Elias CJ includes Loasby in her pronouncement. Loasby was not raised by legal counsel in the Supreme Court hearing, so I speculate that by using Loasby to support her endorsement of the more modern approach, she is suggesting that the case remains good law, despite its misapplication in the respective courts below her.186
182 Coates, above n 177, at 36.
183Ellis, above n 2, at [260] per Williams J :“Indeed, in my view the test was implicitly abandoned by the Supreme Court in Takamore and has at any rate been abandoned in fact, largely because it has been overtaken by events.” 184 Coates, above n 177, at 37.
185 Ellis, above n 2, at [94]; Trans-Tasman, above n 148, at [165] Ngati-Whatua, above n 148, at [346].
Elias CJ’s interactions with the Takamore’s counsel during the hearing go some way in confirming this speculation.187 Interrupting counsel’s submissions on the issue of custom, Elias CJ stated categorically that the Tanistry test related to local custom, “which [is] different from the sort of custom which becomes part of the common law as the general law of the realm”.188 Her views were made clearer in extrajudicial writings published in the years following. Discussing the speed Māori legal issues were developing in New Zealand, she said:189
Already some of the advances of just a few years ago, seem timid or even wrong today...
I would include as a wrong direction identification of Māori custom with English local custom with the straitjacket of immemorial observance.
My other example is uncritical borrowings from other jurisdictions, without sufficient appreciation of differences and in particular without sufficient emphasis on the Treaty.
It appears that Elias CJ also views the Court of Appeal’s decision to apply Tanistry as problematic.190 This, combined with her endorsement of Loasby in Takamore, arguably indicates an intention to leave the door open for future litigants to presage arguments based off Loasby. Unfortunately, the opportunity could not be realised before Loasby was overruled in Ellis.
187 At 56.
188 At 56.
189 Sian Elias “The Meaning and Purpose of the Treaty of Waitangi” (2015) Māori Law Review 8 (no pin-point reference available).
V The Pathway to Abandonment
A Trans-Tasman Resources
Prior to its overruling, Loasby appeared once more in Trans-Tasman.191 Ellen France J directly addressed Coates’ concern about the confusion following Takamore (SC).192 She justified the Supreme Court’s omission to comment on Loasby (footnotes omitted): 193
That is correct because it was not necessary to determine whether the tests for the recognition of custom at common law in cases such as Loasby were met or whether tikanga was a source of law on the approaches taken.
In the associated footnote, she added:
we leave open for determination the questions of whether or not tikanga is a separate or third source of law and whether or not there should be any change to the tests for the recognition of customary law as set out in Loasby.
Here Ellen France J seems to suggest that given the “more modern” approach to tikanga applied in Takamore, it was not necessary for the Court to consider Loasby’s application. The Supreme Court then agreed that Loasby’s ongoing application should be a matter left open. By virtue of Ellen France J’s first quoted statement, one could assume the Court (on which Glazebrook, Williams JJ and Winkelmann CJ also sat) intended for the question-mark over Loasby’s status to be determined in a future case where it was necessary on the approach taken.
191 Trans-Tasman, above n 144. This case involved an application for mining consents under the Exclusive Economic
Zone and Continental Shelf (Environmental Effects) Act 2021, which was later appealed by iwi and an environmental group after it was approved by the Environmental Protection Authority. The Supreme Court ruled that the authority’s assessment ought to be re-considered. Drawing on the Court of Appeal’s earlier finding that there were “other routes” to the conclusion that iwi interests should have been taken into account by the authority, the Supreme Court unanimously found that tikanga ought to have been considered under “other applicable law” in respect of consent decisions made under the Act.
192 Trans-Tasman, above n 144, at [168] per William Young and Ellen France JJ and agreed to by Glazebrook J at [237], by Williams J at [296]–[297] and Winkelmann CJ at [332]
B Overruled in Ellis
This brings us to Ellis, and the majority’s resounding rejection of the “colonial tests” for incorporation of tikanga in the common law. I begin by critiquing the majority’s overruling of Loasby on a technical basis. Following this, I discuss the possible implications of Loasby’s overruling for litigants.
First, and quite significantly, is the majority’s apparent conflation of Loasby with Tanistry. Glazebrook J describes the “tests” as “set out” in Loasby, and later discussed in Takamore (CA).194 Elsewhere Williams J cites both Tanistry and Loasby as the “antiquarian incorporation tests”.195 However, Loasby and Tanistry are distinct tests – a point I have made above – and also one observed in many sources cited by the Supreme Court in Takamore, Trans-Tasman and Ellis.196 Consequently, the Court’s justification for Loasby’s abolition does not stand up to closer scrutiny.
Glazebrook J posited that going forwards: 197
...there would need to be a good reason to retain the incorporation rules in other contexts in the common law. Far from there being a good reason for retention, for the reasons set out below, I consider the tests to be colonial relics with no place in modern Aotearoa/New Zealand.
However, the reasons her Honour sets out to justify Loasby’s overruling only relate to the substantive requirements of the Tanistry test. Glazebrook J states the requirements for custom to be certain and consistent “do not accord with the nature of tikanga”, which can “adapt to new conditions and have local variations as appropriate”.198 Further, that the requirement that custom be reasonable reflected a colonial attitude akin to “judging” tikanga on superior Western values.199 However, Loasby does not judge Māori custom according to its certainty, longevity or substantive
194Ellis, above n 2, at [95].
195 At [260].
196 Christian Whata “Biculturalism in the Law: The I, the Kua, and the Ka” [2018] WkoLawRw 3; (2018) 26 Wai L Rev 24 at 33; Coates, above n 177 at 34; Joseph, above n 39, at 122.
197 Ellis, above n 2, at [113].
198 At [114].
reasonableness. Although the Tanistry test certainly does, that test had never applied in a New Zealand colonial court. In fact, the first (and only) time Tanistry has been directly applied to Māori custom in a New Zealand Court was by Glazebrook J herself (delivering a judgment also on behalf Wild J) in Takamore.
Loasby’s overruling was therefore based on an erroneous conflation of its requirements with Tanistry. This is problematic because Loasby was much easier for Māori litigants to satisfy than Tanistry. The ability for Māori litigants, and lower court judges, to engage with custom law claims using Loasby (specifically Cooper J’s test in its proper construction) is lost.
Ellis also triggers the following question: Was the majority’s decision to overrule Loasby an indication that tikanga custom law claims have also been done away with? If that is the case, Māori have great cause for concern.200
Commentators have long distinguished the court’s modern approach to tikanga, with the approach taken in Loasby. Coates has written:201
In one sense Takamore was a disappointing outcome for Māori. The asserted custom was not outright recognised. It is also difficult to reconcile this decision with Ngati Apa and some of the early decisions, including Loasby, where standalone custom [separate from that attached to native title and natural resources] was recognised.
Similarly, Justice Whata, said extrajudicially:202
The approach taken by the Supreme Court has come under academic criticism, in short, for failing to extend the Loasby approach of incorporating tikanga as law and then by preferring the interests of the spouse over the tikanga of Tūhoe.
I agree it is difficult to reconcile the affirmation of customary title in such clear terms in Paki, which is based on the same tikanga values, with a decision not affirming the ongoing legal status
200 For reasons further explained in Chapter IV.
201 Coates, above n 90, at 75.
of a tikanga rule of equal, and indeed connected, heritage. The opportunity to incorporate tikanga as a rule was lost.
Interestingly, both Coates and the Law Commission (in a project led by Whata) have recently expressed their views that custom law claims according to tikanga can continue.203
The Law Commission said;204
...aspects of tikanga will continue to be incorporated into the common law and given effect to through the customary law doctrine.
We do not read the Supreme Court’s decision in Ellis v R as preventing further “custom” law claims.
Rather than dwell on Loasby’s overruling, the Law Commission suggests that future claims be engaged with according to the principles contained in Ngati Apa, which it summarises as:205
a) The assumption of sovereignty did not displace pre-existing property held according to tikanga;
b) The precise nature and form of any customary land rights or interests must be defined by reference to tikanga and this will be ‘either known to lawyers or discoverable by them by evidence’;
c) Statutory extinguishment of customary land rights must be clear and plain;
d) There is no presumption in favour of adverse English common law norms.
Interestingly, although these principles were formulated in relation to customary rights and interest in property (rather than law), they appear to be prima facie consistent with Loasby’s treatment of tikanga. Perhaps this all means that custom law claims will continue to be heard by Courts along similar lines to Loasby. This is certainly a creative solution for future litigants and lower court judges alike. However, it is open to interpretation as to whether the majority in Ellis foresaw this being the result of their resounding denunciation of the “colonial incorporation tests”.
203 See also Christian Whata “Tikanga and the Law: A Model of Recognition” (2023) 4 Amicus Curiae 610.
204 Law Commission 2023, above n 14, at 226.
Coates argues there is no need to confine Ngati Apa to Native title-specific rights.206 Ngati Apa contains the simple and powerful idea that the common law will recognise tikanga according to tikanga, and on this basis Coates suggests the practice of rāhui could reasonably be enforced in court against third parties.207 She says “this would be consistent with some of the early tikanga recognition cases,” citing Loasby and Arani.208
It seems that the door for litigants to seek enforceable custom remains open, or slightly ajar, thanks to this interpretation of Ngati Apa. Unfortunately, the ability for Māori litigants, and lower court judges, to engage with custom law claims using Loasby (specifically Cooper J’s test in its proper construction) is lost.
VI Conclusion
In summary, the modern treatment of colonial caselaw has been inconsistent and, at times, flawed. Cooper J’s test in Loasby has been consistently misinterpreted since Takamore (HC). A decade later, the Supreme Court in Ellis proactively raised the issue of tikanga in a legal proceeding that otherwise had no connection to Te Ao Māori. Winkelmann CJ, Glazebrook and Williams JJ then used Ellis to make broad pronouncements on tikanga’s position in the common law, and denounced the “colonial tests for incorporation”, including Loasby. Loasby’s overruling was erroneously based on a substantive critique of Tanistry’s requirements and now, to the detriment of Māori, it no longer applies in Aotearoa New Zealand’s common law.209 However, thanks to the creativity of legal commentators, the continuation of custom law claims remains a possibility for litigants to realise.
206 Coates, above n 90, at 73.
207 At 73
208 At 73 per note 38.
209 As will be explained in more depth in chapter IV.
CHAPTER IV
A TRANSITION TOWARDS MODERNITY, BUT A LOSS FOR MĀORI LITIGANTS
I Introduction
The majority’s finding in Ellis that the “colonial tests” for incorporating tikanga into the common law should no longer apply was put emphatically.210 Glazebrook J referred to them as “colonial relics with no place in modern Aotearoa/New Zealand”211; Winkelman CJ said they were “inappropriate” for the modern context and “should not be retained”212; and Williams J’s view was “it would bring the common law of New Zealand into disrepute if the courts continued to apply [them]”.213
Having raised the issue of Loasby’s relevance themselves, the majority agreed “there would need to be a good reason to retain the incorporation rules in other contexts in the common law”, but then failed to consider whether there were any.214 This Chapter will investigate whether, counter to the majority’s assumption to the contrary, there were good reasons to retain them. I argue that Loasby and Arani are important cases for Māori litigants by virtue of their approach to tikanga. Although these are cases where tikanga was recognised to benefit pakeha in the colonial context, I argue they nonetheless hold continuing utility for Māori in the modern context.
210 Ellis, above n 2, [21].
211 At [113].
212 At [177].
213 At [260].
214 At [113].
II Loasby and Arani: A Pathway to Enforceable Custom
Loasby and Arani are exceptions in a colonial jurisprudence otherwise characterized by a notable absence of Aotearoa’s first law. It may be an over-simplification to pejoratively label these cases “colonial relics” by virtue of their age. Instead, they can be understood as cases that recognise tikanga as a source of enforceable rights and freestanding law.
In Ellis, Winkelmann CJ cited Loasby and Arani as examples of early Courts applying tikanga as the source of enforceable rights, invoked by parties in support of private legal claims.215 Writing extrajudicially, Williams J said where certain conditions are met, tikanga can be incorporated into the common law as “enforceable custom” or “free-standing law” in its own right.216 Similarly, Coates refers to “custom [that] applies in and of its own right as a separate stream of law.”.217 These statements describe a distinct, albeit limited, jurisprudence, whereby tikanga customs or practices are recognised in the common law.
The Law Commission has recently adopted three “categories of claims” to describe claims brought to the courts that raise tikanga.218 The first category is most relevant to the discussion in the following section. These are claims based on “tikanga as custom”, which seek recognition of a tikanga-based practice as giving rise to enforceable rights and interests in the common law.219 Loasby and Arani are both examples of such claims. For simplicity’s sake, this dissertation will proceed on similar terms adopting the phrase “custom law claims” to describe those cases.
A Custom Law Claims
The rarity of custom law claims makes it difficult to comment generally on their legal status and potential. Here I draw inferences from the limited caselaw and their commentaries. When a claim based on custom is brought, the claimant asks the Court to convert a tikanga-based practice into a
215 At [175].
216 Williams, above n 37, at 9.
217 Coates, above n 177, at 37.
218 Law Commission 2023, above n 14, at 222. Three claims are identified: claims based on tikanga as custom, claims based on tikanga values, and claims based on tikanga as law.
right or obligation legally enforceable in common law.220 Therefore, the colonial approach provides a discrete cause of action that litigants can enforce against other citizens.
1 The significance of legal rights
In their most basic form, “rights” are legal entitlements giving rise to corresponding legal duties or obligations.221 Where a right is breached or invoked, the right-holder can appear in court for a legal remedy or decision in their favour.222 Rights therefore necessarily invoke a specific legal response, whereas legal interests do not.223 Edward Willis has observed the law responds to rights by ensuring substantive remedies for their holders and affording them priority over competing private interests.224
Loasby illustrated this distinction between a right and its corresponding remedy. Cooper J recognised the tangihanga custom as giving rise to a right of reimbursement from the deceased’s estate, but Loasby did not have a cause of action against the Public Trustee to enforce that right or obligation. Rather “he should have sued the person who ordered the goods supplied [Arete Mahupuku], leaving such person to his or their remedy against the present administrator of the estate of the deceased chief”.225
Likewise, in Arani, the Privy Council stated Māori custom gave the litigant the legal status of adopted child to Māori parents. They therefore agreed with the Native Appellate Court she had the right to succeed to her parent’s native land interests, which were otherwise inalienable to those without Māori heritage.226 Consequently, they affirmed the remedy of vested title (in part) to the Pakeha litigant.
220 Law Commission 2023, above n 14, at 244.
221 Wesley Newcomb Hohfeld "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) 23 Yale LJ 16 at 21.
222 Jim Evans "What Does it Mean to Say that Someone has a Legal Right?" (1998) 9 Otago LR 304 at 306.
223 HLA Hart "Bentham on Legal Rights" in AWB Simpson (ed) Oxford Essays in Jurisprudence (Second Series) (Clarendon Press, Oxford, 1973) 171 at 171 as cited in Edward Willis “Legal Recognition of Rights Derived From the Treaty of Waitangi’ (2010) 8 NZPIL 217 at 218-219.
224 Willis, above n 238, at 217.
225 Loasby, above n 5, at 510.
In the context of civil law disputes at common law, litigants who come to court with claims based on purported rights are “taken seriously”.227 Such was the Takamores goal, that Tūhoe custom could give rise to legal authority at common law to take possession of their 47hanau member’s body, overriding the executor primacy rule.228 Coates explains that successful tikanga as custom claims can “trump” other common law maxims and rules, given “the very essence of the continuity doctrine is that the custom continues”.229 Hence, unless extinguished, the pre-existing laws of indigenous peoples continues to apply with primacy to their relations. Interestingly, despite their widespread interpretation as cases based on the “presumption of continuity”, neither Loasby or Arani refer to the doctrine.Nonetheless, Loasby and Arani support Coates’ conclusion, because both cases used tikanga to justify a legal position differing from the English common law. In Loasby, reimbursement for otherwise unreasonable expenses could be claimed, and in Arani, a pakeha woman succeeded to native lands otherwise inalienable to non-Māori. Coates also cites Cooper J’s acknowledgement that tikanga will not be considered unreasonable for being inconsistent with the common law, which implies tikanga as custom claims can be upheld to trump prevailing common law rules and maxims.230
III The Modern Approach: Cause for Celebration and Critique
A. A Positive Development
The modern approach in Ellis should be lauded for finally acknowledging the cognisability of tikanga principles, forms and processes (as coined by Carwyn Jones).231 It rightly accommodates the fluidity of tikanga, and its applicability to modern circumstances. The broad framework provided by the majority’s description of the approach in Ellis, also ensures flexibility for future litigants pursuing tikanga based arguments against both private actors and public bodies.
227 Willis, above n 223, at 217.
228 Coates, above n 177, at 36.
229 At 36 note 49.
230 At 36 note 49.
231 Jones, above n 130, at 183.
Formulated with an intent to be “transformative”, Ellis may also be the closest a Court has gone in acknowledging tikanga’s value as dynamic system of law.232
The Smith v Fonterra Co-operative Group Ltd litigation provides an emerging example of this approach, introducing the possibility of a new environmental tort partly informed by tikanga principles.233 The Supreme Court’s decision on a strike-out application of Mr Smith’s tortious claim against seven private companies (including the likes of Fonterra and Z Energy) is highly awaited. Te Hunga Roia Māori o Aotearoa have also been engaged in the process by the Courts. Williams J granted leave for their submissions on the tikanga aspects of the claim soon after it was appealed to the Supreme Court.234
Without detracting from its general significance, it is essential to address the fundamental shortcomings of the modern approach. Here I draw its practical legal value into contrast with the custom law claims that succeeded in Loasby and Arani.
B Keeping Doors Open: The Need for Custom Law Claims for Māori Litigants
The status of custom law claims is relatively unclear following Loasby’s overruling. Although the majority do not expressly overrule the doctrine of continuity, their formulation of the modern approach appears to lack recognition of tikanga as the potential source of enforceable private rights and obligations in the common law. Furthermore, in framing their pronouncements in terms of a transition from the colonial approach towards one more suited for the modern context, the implication is that the “colonial approach” – which includes the custom law claims that succeeded in Loasby and Arani – is abandoned.
An alternate view, and one taken by the Law Commission and Coates, is that custom law claims will continue based on the principles espoused in Ngati Apa. In support of this view, I argue below
232 Coates, above n 177, at 76.
233 Smith v Fonterra Co-operative Group Ltd [2022] NZSC 35. See generally Maria Hook, Ceri Warnock, Barry Allan and Mihiata Pirini “Tort to the Environment: A Stretch Too Far or a Simple Step Forward? Smith v Fonterra Co-operative Group Ltd and Others [2020] NZHC 419” (2021) JEL 195.
234 Smith v Fonterra Submissions for Te Hunga Rōia Māori Aotearoa (Māori Law Society) SC 149/2021.
there is a continuing need for courts to hear custom law claims, alongside claims based on the modern approach.
New Zealand courts have always been amenable to recognising various aspects of tikanga, based on how claims have been argued by litigants (usually Māori). Various approaches to recognising tikanga have thus evolved overtime, which by virtue of tikanga’s inherent complexity, is entirely appropriate – it being a normative system of law comprised of various rules, customs, norms, principles, processes and ideas.
The majority in Ellis accepted that tikanga can form the basis of several different types of claims before the courts, each suited to a particular type of litigant. In fact, that various approaches have evolved according to the claims of litigants is also a hallmark of the common law method itself.235 Custom law claims are a particularly important legal avenue to protect. I argue this position by virtue of three characteristics inherent to custom law claims, that the modern approach lacks.
In Ellis, the Court accepted tikanga comprises both specific practices or customs and the underlying principles that inform them.236 However, the modern approach appears to recognise tikanga principles, processes, and forms of thinking, vocabulary, and perspectives– to the exclusion of specific practices.
Hirini Mead distinguishes between mātauranga Māori, the knowledge base and ideas associated with a particular tikanga, and kawa, the protocols which are associated with correct practice of that tikanga.237 So whilst the modern approach draws exclusively from tikanga’s knowledge base to develop the common law generally, the colonial approach recognises a legal right of Māori to carry out those practices and protocols.
For example, rāhui is a procedure prescribed by tikanga. A rāhui is placed upon a specific place to prevent free access to it. Commonly, rāhui are placed over bodies of water after human drownings
235 See Chapter V.
236 Statement of Tikanga of Sir Hirini Moko Mead and Professor Pou Temara (2020) at [37].
237 Hirini Moko Mead “Rahui, Aukati: Ritual Prohibitions” in Tikanga Maori: Living By Maori Values (Huia Publishers, Auckland, 2016) at 153.
or for conservation concerns.238 This practice is sourced in the tikanga values of tapu (sacred) and kaitiakitanga (stewardship) respectively.239 Therefore whilst Loasby could give rise to a private right to enforce rāhui against other citizens, the modern approach is more concerned with applying the principles of tapu and kaitiakitanga to general developments in the common law.
Secondly, despite tikanga becoming increasingly cognisable in law through the modern approach, it is not recognised as free-standing law. While legal principles and values can exert influence on the resolution of legal questions, and thus the general development of the common law, they cannot form the basis of discrete legal claims.240
The modern approach has the potential for widespread application in the common law, however, it affords tikanga principles relatively weak legal effect and status. Glazebrook J plainly states tikanga will not assist the court where it would be contrary to statute or other binding common law precedent.241 Likewise, when Williams J posits that tikanga ought to be considered where there is “room for tikanga principles” amongst the pre-existing common law, he implies that tikanga must be ignored where the two otherwise conflict.242
The disappointing result is tikanga principles will only exert influence in areas of the common law that are novel, developing, or already consistent with tikanga principles (such as in Ellis, and potentially the Smith litigation). In contrast, the colonial approach allowed for the transformation of specific tikanga practices into legally enforceable rights and obligations. Consequently, each approach provides a distinct pathway, suiting very different types of litigants.
The modern approach provides all New Zealanders with the option to use tikanga to mount legal arguments for novel developments in the common law (as seen in Ellis).243When applied to civil
238 At 153.
239 At 154.
240 Paul Rishworth “Writing things unwritten: Common law in New Zealand’s constitution” (2016) 14 ICON 137 at 151.
241 Ellis, above n 2, at [117] per Glazebrook J.
242 At [264] per Williams J.
243 Although potential litigants will be limited to those with sufficient funds to instigate high-profile litigation.
disputes, where tikanga principles conflict with common law rules or precedents, tikanga is merely an “ingredient in a multi-layered analysis”.244 The modern approach therefore provides little practical impact for Māori litigants who are engaged in private conflict and wish to rely on tikanga to establish a legal position.
For this reason Laura Lincoln described the approach in Takamore as “merely [paying] lip service” to tikanga, its legal effect essentially relegated to a factual consideration that can be overlooked.245 The Supreme Court itself acknowledged this, describing the approach as requiring “little extension of the common law relating to burial”.246 This was to the Takamores disadvantage. When determining the final burial location, the executor’s consideration of tikanga is merely a process requirement, rather than one requiring a substantive outcome giving effect to tikanga.247 Tikanga is recognised, but it is not necessarily realised in a way that is meaningful to Māori litigants.248
As Mihiata Pirini argues, the modern approach in Ellis is not so concerned with protecting Māori rights and interests.249 Instead, it seeks reconciliatory objectives:“it is directed towards developing the common law, and in a way that identifies synchronicities or points of agreement between Māori and common law traditions.”250 So while the modern approach to tikanga goes some way in finally resembling Williams’ third law, one that is “pluralist” in nature and applicable to all251, it falls short of recognising tikanga in a way that Māori litigants can practically utilise.
Conversely, the colonial approach enables all New Zealanders to invoke a specific tikanga practice as the basis for legal rights in the common law. This was the pathway the Takamores initially pursued in their private dispute with Ms Clarke. Should a scenario arise where Māori are required to justify actions taken according to tikanga, they ought to be able to rely on a tikanga as custom claim. Although it is impossible to predict how tikanga as custom claims could arise in Courts,
244 Ellis, above n 2, at [267] per Williams J.
245 Lincoln, above n 68, at 164.
246 Takamore (SC), above n 15, at [257].
247 For a similar discussion of “process requirements” in Māori legal issues cases see Hanna Wilberg “Judicial Remedies for the Original Breach" [2007] 4 NZ L Rev 713 at 725.
248 This phrasing is borrowed from Jacinta Ruru’s speech at the Ethel Benjamin Address in Dunedin (October, 2023).
249 Pirini, above n 137, at 118.
250 At 118.
251 Ellis, above n 2, at [272] as cited in Pirini, above n 137, at 117.
tikanga continues to be practised by Māori, particularly within private spheres relating to childbirth, death and religious/spiritual ceremony. Furthermore, as acknowledged by the Privy Council in Arani, there ought to be room for tikanga practices and customs to evolve as the needs of Māori do.252
Chambers J’s assertion that another Takamore scenario would be “highly unlikely” to ever come before a Court again already appears to be incorrect.253 In June 2022, it was reported that a pakeha widow would take legal action against her late husband’s whanau for “forcibly taking” his tupāpāku to Whangapē for burial.254
Mamari Stephens, commented “this kind of case is not going to go away, it’s been happening for a long time and it’s going to continue to happen.”255 This being true, the need for tikanga as custom claims will persist, despite the Court’s decisive transition to a modern approach which ignores the potential enforceability of custom.
Emma Gattey also expressed skepticism over Glazebrook and Wild JJ’s “more modern approach” in Takamore.256 She said despite its “high-sounding promise and potential” the majority’s “workable compromise” between tikanga and common law had marginal effect for Māori litigants.257
Gattey ultimately describes the approach as one of “self-professed modernity”.258 Their Honours express the need for a “more modern” approach that is consistent with Te Tiriti and indigenous
252 It is beyond the scope of this dissertation to develop this point further. For a recent example of Māori taking tikanga-
based actions to respond to modern circumstances see Luke Fitzmaurice and Maria Bargh Stepping Up: COVID-19 Checkpoints and Rangatiratanga (Huia Publishers, Auckland, 2021).
253 Takamore (CA), above n 15, at [299].
254 Māni Dunlop "Widow vows to take legal action as husband's body forcibly taken by whānau and buried" (9 June 2022) NewsHub <www.newshub.co.nz>.
255 Māni Dunlop "Whānau acted according to tikanga when taking Tommy Murray's body, cousin says" (10 June 2022) New Zealand Herald <www.nzherald.co.nz>.
256 Gattey, above n 96 , at 39.
257 Gattey, above n 96, at 38.
258 At 38.
people’s rights. 259 However their approach falls short of that admirable goal with regard to the practical needs of Māori. Ellis attracts the same concern. It is not difficult to see why the modern approach should exist. That New Zealand’s common law should develop in a manner that is consistent with Te Tiriti and indigenous rights is a widely supported notion.260
The modern approach has the potential for wide-ranging, transformative effect in the common law in pursuit of these aims; but it loses sight of Māori litigants who should wish to justify actions taken pursuant to tikanga customs. It is difficult to reconcile why the achievement of a modern approach to tikanga, comes at the expense of enforceable-custom rights for Māori via Loasby – a legal avenue that realises those same objectives, but on a level that can provide a personal remedy to everyday Māori.
IV Conclusion
In summary, Ellis recognises tikanga as a source of legal principles, forms and processes. In what the majority implied was a step towards modernity, tikanga can influence the common law wherever it is relevant rather than when the “colonial” tests for incorporation set out in Loasby are met. It is unclear whether this transition away from Loasby, incidentally represents the loss of the custom law claims described above. Such an outcome would be normatively undesirable. It would represent a loss of status for tikanga in the common law.261 Moreover, it would represent a loss to Māori litigants. It is for these reasons, that courts ought to embrace custom law claims based on Ngati Apa – should they be brought by litigants in the future.
259 Takamore (CA), above n 15, at [254] as cited in Gattey, above n 96, at 38.
260 For more discussion on this matter see Wilberg, above n 247 and Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Nations Declaration on the Rights of Indigenous Peoples" (2019) 1 NZ L Rev 855. Both authors draw on Te Tiriti and indigenous people’s rights justifications to argue for increased judicial oversight for the protection of Māori rights, and judicial remedies for breaches of Māori Treaty rights, respectively.
261 See Dean Knight and Mihiata Pirini, above n 95, at 564 who share the same concern.
CHAPTER V
EXPLORING THE UNDERCURRENTS IN ELLIS
I Introduction
In this Chapter I seek to uncover an explanation for aspects of the majority’s decision in Ellis. My purpose in this Chapter is not to ascribe a specific intention onto the Supreme Court bench (nor could I possibly). Rather I seek to extrapolate from Ellis an understanding of why tikanga’s treatment in the courts has been so varied, and at times, so plagued by interpretative error and misunderstanding.
II Why was Loasby Overruled?
Having observed confusion over the status of the incorporation tests since Takamore, the majority may have sought to finally clarify the application of those tests in the common law.262 Their mistake was to conflate Loasby with Tanistry and cast both off as “colonial relics”. Keeping in mind, as I have argued, Loasby displayed a nuanced and tikanga-grounded treatment of the reasonableness requirement.
I suggest the majority’s oversight of Loasby’s substance is attributable to two broad, and inter- related, issues. The first is their adamant pursual of a new, anti-colonial approach to tikanga. The second, is that in pursuit of this objective, the majority took a somewhat unorthodox approach to decide much more than they needed to regarding tikanga in the common law.
262 See Trans-Tasman, above n 144, on which Winkelmann CJ, Williams and Glazebrook JJ all sat.
A The Majority’s Law-Making Project
As I have argued, the transition confirmed in Ellis – one that is transformational and “ok for everyone?” – emerged from the majority’s initiative, not the arguments of litigants. 263 This is not to deny the normative value of the modern approach. Ellis can be construed as “law-making as nation-building” and a positive development for the recognition of tikanga.264 However, in pursuing this larger project for tikanga in the common law, the majority appear to have lost sight of the individual litigant. As explained above, this is particularly problematic in the context of custom law claims, because the individual litigants who rely on those claims will invariably be Māori.
B What about the common law method?
The second related point is that this oversight is unlikely to have eventuated had the issue of Loasby’s continuance been left to a case where it was on issue, and importantly, the subject of arguments brought by litigants. Winkelmann CJ, Williams and Glazebrook JJ agreed in Trans- Tasman that Loasby’s ongoing applicability ought to be determined in a case where it was necessary to the remedy sought. Yet, less than a year later they overruled the Loasby test in Ellis. In contrast to Takamore, Ellis did not concern a potential tikanga-based custom law claim (which would have necessarily invoked consideration of the “old incorporation tests”). Rather, it concerned whether tikanga principles could inform the development of the general common law relating to posthumous appeals – an issue that was raised by the Court itself and agreed to by both legal counsels.
Writing extrajudicially, Glazebrook J said the majority’s removal of the colonial tests for incorporation of tikanga, “which the Supreme Court had not previously pronounced on”, was not obiter.265 She said this was because:266
263 Williams, above n 96, at 602.
264 Pirini, above n 137, at 18. Williams above n 37, at 12.
265 Susan Glazebrook “Tikanga and Culture in the Supreme Court: Ellis and Deng” (2023) 4 Amicus Curiae 287 at 292.
266 At 292-293.
...all three of us considered tikanga was at least relevant to this case, and thus it was necessary for all three of us to decide whether or not the old incorporation tests had to be applied.
However I must highlight that the majority’s promouncements on tikanga went far beyond what counsel submitted to them. Neither legal counsel had argued for its overruling. 267 In fact, the Tikanga Hearing transcripts demonstrates the opposite was true – legal counsel agreed custom law claims based on tikanga were a very separate thing altogether, not on issue in Ellis.
Natalie Coates, acting as counsel for Mr Ellis, began her submissions by identifying three ways tikanga and the common law have intersected.268 The first was where “tikanga is relevant as the source of enforceable rights, interests and obligations by Māori”. Loasby was provided as an example.269 Secondly, she said tikanga could be a “relevant consideration in [the] public law sense”.270 Thirdly, she said tikanga values are relevant to informing the interpretation and development of the common law generally, and this was the category that Ellis fell into.271
Further, in response to a question from Williams J, Coates clarified:272
In this particular case we’re not invoking tikanga as a legal right that’s personal to Mr Ellis as a Pākehā, we’re talking about the development of an area of the common law as it applies to all New Zealanders in relation to continuance, and the extent to which tikanga values can impact that.
267 See Ellis, above n 2, at [279] per O’Regan J: “We consider that the test set out in the incorporation cases should
not be overruled without the Court being in a position to articulate what replaces it, especially as no counsel argued that it should be overruled.”
268 Ellis v R [2020] NZSC Trans 19 (“Tikanga Hearing”).
269 At 7.
270 At 7.
271 At 8.
272 At 16.
These submissions indicate the majority’s decision to address and then overrule the “colonial incorporation tests” was by reason of their own prerogative. It was not necessary for them to do so to decide Ellis.273
The majoirty’s treatment of this issue seems to stretch the boundaries of orthodox common law method. The “common law method” is the approach judges take to ensure continuity and change in the common law.274 Whilst the common law can “creative and dynamic” it must also be stable to ensure the maintence of social order.275 Through adherence to fundamental ideas, concepts and values, (and the steadying effect of precedent) judges incrementally change the law so as to repsond to the changing needs of society.276
This inherently dynamic feature of the common law has enabled the development of Te Tiriti, Native Title, (and now) tikanga jurisprudence. Importanlty, the “changing needs of society” are brought to judicial attention through the claims litigants bring to court. Rather than originating legal developments, the courts decide cases in a way that develops the law.277 In this way change is incremental and the common law is stable. Winklemann CJ has said extrajudicially that, “to fulfil this stabilising role, the common law must develop through evolution, not revolution.”278
Prior to Ellis, it seems to have been broadly accepted that judges deciding tikanga cases “should be careful only to decide as much as had to be decided to address the issues in this case”.279 Of course, the Supreme Court was entitled to overrule both incorporation tests. However, their apparent justification for overruling the Loasby test clearly demonstrates a misunderstanding of Loasby’s substance, and a failure to properly consider the implications of its removal from the toolbox of future litigants. The majority’s misunderstanding of Loasby would have certainly been influenced by its extremely varied and inconsistent application in Takamore. Loasby’s overruling
273 Compare with the approach taken by Fogarty and Chambers JJ in Takamore. Takamore (CA), above n 15, at
[269] per Chambers J (dissenting) (footnotes omitted): “In the High Court, Mr Ferguson had submitted to Fogarty J that he “should be careful only to decide as much as had to be decided to address the issues in this case”. Fogarty J agreed. So do I.”
274 Winkelmann, above n 7 at 5.
275 At 5.
276 At 5.
277 Sir Robin Cooke “The Dynamics of the Common Law” [1990] NZLJ 261 at 5.
278 Winkelmann, above n 7, at 5.
279 Takamore (CA), above n 15, at [269].
is perhaps therefore best characterised as a misstep or oversight by the Supreme Court in Ellis, but heavily influenced by a pattern of persistent judicial misunderstanding of the case since its application by Fogarty J in 2007.
Importantly, had the majority heard arguments from the litigants (which included Natalie Coates) on Loasby’s potential value, its overruling could have likely been prevented. This aspect of the decision demonstrates the continuing need for the judiciary to “take care in the manner that they traverse the interaction between the two legal systems”, as Coates warned following Takamore.280 Ellis further demonstrates that as much care ought to be taken to preserve the basic common law method, as to preserve the integrity of tikanga.281
III Addressing the Elephant in the Courtroom: Ngati Apa
Finally, I will address what effect (if any) our Native title jurisprudence may have had on the majority’s decision in Ellis. In this section, I consider what influence Ngati Apa (and the political fallout that followed) may still have on our highest courts today.
A Ngati Apa
The seminal Attorney-General v Ngati Apa recognised un-extinguished Māori customary rights in the foreshore and seabed based on the doctrine of Native title.282 However the effect of this decision was promptly overturned by the Labour Government of the time and their enactment of the Foreshore and Seabed Act 2004. Controversially, the Act vested the foreshore and seabed in the Crown and extinguished the Māori Land Court’s jurisdiction to consider customary ownership claims in the foreshore and seabed.283
B A Constitutional Showdown
Parliament’s decision to immediately undo the effect of the Court of Appeal’s decision that is unlikely to ever be forgotten (by New Zealanders and appellate court judges alike). The
280 Coates, above n 177, at 56.
281 Only the latter has been a point of discussion so far: Ellis, above n 2, at [181] and [272]. See Robert Joseph “Frozen rights?: The right to develop Māori treaty and aboriginal rights” (2011) 19 WLR 117.
282 Ngati Apa, above n 1.
283 Foreshore and Seabed Act 2004, ss 12 and 13.
Government’s response highlighted in the clearest terms that judicial decisions remain subject to Parliament’s exercise of unfettered sovereignty. The controversy is described by Winkelmann CJ as one of New Zealand’s few “constitutional showdowns” between the judicial and executive branches of government.284 The issue of tikanga in the common law is a similarly politicised issue, as evidenced from the intense media scrutiny and interest both Takamore and Ellis have received.285 Coates and others have posited whether a pattern of “judicial conservatism” will follow in similarly controversial areas of the common law.286 Perhaps the modern approach, in contrast to one where tikanga-based rights are enforced by Māori in private disputes, can be better understood in this light.
Heath J, writing extrajudicially, has suggested that the “one law for all” approach to tikanga is the only one a majority of New Zealanders would feasibly support.287 Similarly, Ellis is palatable to onlookers given its non-racialised facts and general consistency with pakeha values. The decision therefore perhaps demonstrates a judiciary that has been influenced by Ngati Apa to pursue a more cautious and moderate “one law for all” approach in the common law.288
Glazebrook J’s recent address regarding Ellis revealed her Honour has the New Zealand public’s reaction to their tikanga pronouncements broadly in mind. Her underlying message is that “there is no need to panic” (which she repeats three times).289 The decision is “nothing new”, nor is the common law being replaced.290 To the contrary, she said most Pākeha New Zealanders, as well as our Asian and Pasifika communities, would likely accept that the reputations of deceased persons are important.291
284 Winkelmann, above n 39, at 5.
285 Coates, above n 177, at 52.
286 Andrew Erueti “Demarcation of Indigenous Peoples’ Traditional Lands: Comparing Domestic Principles of Demarcation with Emerging Principles of International Law” (2006) 23 Ariz J Int’l & Comp L 543 at 579 cited in Coates, above n 90, at 52.
287 Paul Heath “One Law For All” (2007) 10 Yearbook of New Zealand Jurisprudence 194 at 210. He compares this approach to the Māori customary law approach, which recognizes Māori rights and ownership.
288 Paul McHugh Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford University Press, Oxford, 2011) at 331.
289 Glazebrook, above n 265, at 294-295.
290 Glazebrook, above n 265, at 293.
291 David Williams, above n 41, at 298 as cited in Winkelmann, above n 39, at 14.
C Towards Firmer Foundations for Tikanga Jurisprudence
Sarah Down and David Williams agree that “important parallels and lessons” can be drawn from Native title jurisprudence when it comes to developing tikanga’s place in the common law.292 R v Symonds is regarded as the “origin and source” of the doctrine of Native title that was affirmed in Ngati Apa.293 However it is also a case that has been discredited on its facts. Williams reveals that Native title was merely recognised to undermine the Colonial office’s claim to a land estate, that was then transferred to a pakeha settlor.294 The case did not involve Māori parties, nor did it serve any benefit to Māori until almost a century later.
To recognise Native title, the Court in Ngati Apa re-interpreted the colonial caselaw in a manner consistent with the Crown’s Treaty of Waitangi and international human rights obligations.295 Rather than disregard Symonds for the undoubtedly dubious context in which it was decided, the Court of Appeal accepted legal arguments based on those cases by Māori litigants.
Down and Williams argue that rather than similarly relying on Loasby and Arani, cases that exclusively benefited pakea litigants, courts should build “firmer foundations” for our future tikanga jurisprudence.296 This is different to the approach taken in Ngati Apa, where the Court accepted legal arguments based on Symonds by Māori litigants. In doing so, colonial caselaw was re-interpreted in a manner that was consistent with the Crown’s Te Tiriti and indigenous rights obligations.297
The transition confirmed in Ellis appears to lean towards Down and William’s suggestion for “firmer foundations”. As does Williams J’s recent extrajudicial article addressing whether tikanga
292 Sarah Down and David Williams “Building the foundations of tikanga jurisprudence” (2022) 29 Canterbury Law
Review 27 at 45.
293 David Williams “Judges and Judging in Colonial New Zealand: Where did native title fit in? in Paul Brand (ed)
From Antiquity to Modern Times (Cambridge University Press, Cambridge, 2021) 306 at 320.
294 At 320-323.
295 McHugh, above n 100, at 143.
296 Down and Williams, above n 306, at 45.
297 McHugh, above n 100, at 143.
is “ok for everyone?”.298 In tracing tikanga’s application in the common law, Williams begins by debunking the “earliest and most celebrated” cases on tikanga, Symonds and Loasby.299 After stating the truth about Symonds, Williams reiterates that Loasby only recognised tikanga for the purpose of securing a pakeha man’s debt.300 Williams’ acknowledgement, that Loasby viewed in its context is not necessarily what it is often held out as, suggests Loasby’s overruling may be predicated not on its substance, but on an assumption that the colonial context in which it was decided made it a bad test.
IV Conclusion
My objective in this Chapter has been to extrapolate, from their judgments and extrajudicial writings, a way of understanding the majority’s overruling of Loasby. I have argued that Loasby’s overruling is properly characterized as a judicial oversight or misstep, attributable to the majority’s desire to make wide-ranging general pronouncements on tikanga’s place in the common law. I then considered, as other writers have done, whether Ngati Apa’s lasting influence could shed light on the majority’s transition to a modern approach. Ultimately that decision provides the boarder political context in which Ellis was decided. Ngati Apa is therefore present in the “undercurrents” of the Ellis decision. 301 It has arguably informed the majority’s desire to formulate a new, modern, and anti-colonial approach to tikanga. This is because it is a “one law for all” approach to tikanga
– and thus a legal outcome that is likely to attract majoritarian political support.
298 Williams, above n 96, at 602.
299 At 602.
300 At 602.
301 I use the word undercurrents to describe hidden opinions, feelings and influences behind that explicitly stated.
CHAPTER VI CONCLUSION
In the years following Takamore, there was much speculation by onlookers as to whether or not the judiciary were up to the challenge of genuine interaction with tikanga. Despite skepticism, the Supreme Court in Ellis realised that challenge whole-heartedly by confirming the ongoing application of a modern approach to tikanga. In fact, the majority of the Supreme Court sought out a perfect stage on which they could do so. Peter Ellis, and the posthumous appeal of his long- disputed convictions, provided a novel (and importantly, non-racialised) context in which tikanga could be generally pronounced on.
However, I have shown that along the way, their treatment of colonial caselaw (and those of the previous courts before them) has been less than satisfactory. I have suggested this is the result of courts deciding more than is required of them on the facts of a given case. On this subject, in describing the dynamic nature of New Zealand’s common law, Lord Cooke said of the then developing Treaty jurisprudence:302
Of course, the Courts originate nothing. It is the legal adviser who shapes a case in a manner rendering it justiciable.
Some dedicated and skilled work by members of the legal profession has played a major part in advancing Māori causes to a stage where (at least it is permissible to hope) the Courts can be seen as their protectors if they can make out a good case.
As I have shown, the majority in Ellis did originate the tikanga argument. They then overruled Loasby despite the fact lawyers were not given the opportunity to make a good case for its retainment. I do note that the majority’s transition to a modern approach (and oversight of Loasby) could have perhaps been an over-correction or response to the commentators who doubted courts would be receptive to the arguments of Māori litigants based on tikanga.303 In addition, Ngati
302 Cooke, above n 278, at 5.
303 Coates, above 177, at 56; Gattey, above n 96, at 63.
Apa’s ramifications may have influenced the judiciary’s preference for a modern approach to tikanga.
Anyhow, Ellis demonstrates that in tikanga cases care must be taken by the courts in the manner they seek to develop the law, so as not to overlook the individual Māori litigant. Nearing his retirement, Lord Cooke looked to make an explicit warning to courts along these lines. Famously known as a particularly “activist” judge himself, he warned that in New Zealand’s race relations cases:304
In one way the curve has to be fast. But if there is one lesson that sitting in these cases has taught me, it is the good sense, given the right intentions, of an old maxim from quite another culture, festina lente.
Cooke’s message was to make haste slowly, and it rings true to this day. Ellis demonstrates that the transformation of Aotearoa New Zealand’s common law ought to occur at a pace that allows for appropriate care when dealing with tikanga issues. As our courts embark on the transition towards modernity, I do not doubt that most colonial relics should be left behind. But who should determine whether a relic is discarded or treasured? Surely in this context, the answer ought to be Māori. Ellis also highlights the need for litigants and commentators alike to make claims and arguments that reflect how they wish to see the common law develop. Otherwise, as with any significant transformative change, pieces may fall through the cracks – lost in transition.
304 Cooke, above n 278, at 7.
Bibliography
A Cases
Arani v Public Trustee of New Zealand [1919] UKPC 71; [1920] AC 198 (PC).
Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).
Baldick v Jackson (1910) 30 NZLR 343 (SC).
Clarke v Takamore [2009] NZHC 901; (2010) 2 NZLR 525 (HC).
Cowan v Cowan [2022] NZSC 43.
Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC).
Knowles v Police (1998) 15 CRNZ 423.
Mason v R [2013] NZCA 310.
Mercury NZ Ltd v Waitangi Tribunal [2020] NZHC 654.
Ngāti Whātua Ōrākei Trust v Attorney General [2018] NZSC 84.
Nireaha Tamaki v Baker [1901] UKLawRpAC 18; [1901] AC 561; (1901) NZPCC 371 (PC).
Paki v Attorney‐General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.
Peter Hugh Mcgregor Ellis v R [2020] NZSC 89
Peter Hugh Mcgregor Ellis v R [2022] NZSC 114.
Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority [2004] 2 NZLR 201 (HC).
Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (HC).
R v Iti [2007] NZCA 119, [2008] 1 NZLR 587.
R v Mason [2012] NZHC 1361.
R v Symonds (1847) NZPCC 387 (SC).
Re the Ninety-Mile Beach [1963] NZLR 461 (CA).
Ririnui v Landcorp Farming Ltd [2016] NZSC 62.
Smith v Fonterra Co-operative Group Ltd [2022] NZSC 35.
Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181.
Takamore v Clarke [2011] NZCA 587.
Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
Takamore v Clarke [2012] NZSC 17.
Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC).
Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board [2021] NZSC 127.
Wi Parata v Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur NS 72 (SC).
Campbell v Hall [1774] EngR 5; (1774) 98 Eng Rep 1045.
Johnson v Clark [1907] UKLawRpCh 160; (1908) 1 Ch 303.
Knight v Knight 11 VLR 689.
The Case of Tanistry (1608) Davies 28, 80 ER 516 (KB).
3 India
Mullick v Mullick (1829) 1 Knapp 245.
B Legislation
Care of Children Act 2004. Conservation Act 1987.
Foreshore and Seabed Act 2004. Native District’s Regulation Act 1858 Native Exemption Ordinance 1844 Native Lands Act 1862.
Native Land Act 1865. Native Rights Act 1865.
Resource Management Act 1991. State-Owned Enterprises Act 1986. Supreme Court Act 2003.
Treaty of Waitangi Act 1975. Native Exemption Ordinance 1844.
2 United Kingdom
English Laws Act 1858 (UK) 21 & 22 Vict c 2.
New Zealand Constitution Act 1852 (UK) 15 & 16 Vict c 72.
C Books and Chapters in Books
Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in M Belgrave, M Kawharu and D Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Melbourne, 2005).
David Williams “Judges and Judging in Colonial New Zealand: Where did native title fit in? in Paul Brand (ed) From Antiquity to Modern Times (Cambridge University Press, Cambridge, 2021) 306.
Hirini Moko Mead “Rahui, Aukati: Ritual Prohibitions” in Tikanga Maori: Living By Maori Values (Huia Publishers, Auckland, 2016).
HLA Hart “Bentham on Legal Rights” in AWB Simpson (ed) Oxford Essays in Jurisprudence
(Second Series) (Clarendon Press, Oxford, 1973) 171.
Luke Fitzmaurice and Maria Bargh Stepping Up: COVID-19 Checkpoints and Rangatiratanga
(Huia Publishers, Auckland, 2021).
Mark Hickford Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire
(Oxford University Press, Oxford, 2011).
Mihiata Pirini, “Interview with the Honourable Justice Sir Joe Williams, the New Zealand Supreme Court” in WC Wallace and others (eds), Trends in the Judiciary. Volume 4:
Natalie Coates “The Rise of Tikanga Maori and Te Tiriti o Waitangi Jurisprudence” in John Burrows and Jeremy Finn (eds) Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) 65.
Paul McHugh Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford University Press, New York, 2004).
Paul McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Oxford, 1991).
Philip Joseph, Tikanga Māori and the Law” in Joseph on Constitutional and Administrative Law
(5th ed, Thomson Reuters, Wellington, 2021) 105.
Richard Boast “Māori Customary Law and Land Tenure” in Richard Boast, Andrew Erueti, Doug McPhail and Norman F Smith (ed) Māori Land Law (LexisNexis NZ, Wellington, 2004) 21.
Shaunnagh Dorsett “The Displacement of Tikanga – A Brief Jurisprudential Afterword” in Juridical Encounters: Maori and the Colonial Courts, 1840-1852 (Auckland University Press, 2017) 271.
D Journal Articles
Andrew Erueti “Demarcation of Indigenous Peoples’ Traditional Lands: Comparing Domestic Principles of Demarcation with Emerging Principles of International Law” (2006) 23 Ariz J Int’l & Comp L 543.
Ani Mikaere “Tikanga as the First Law of Aotearoa” (2007) Yearbook of New Zealand Jurisprudence 24.
Carwyn Jones “Lost from Sight: Developing Recognition of Māori Law in Aotearoa New Zealand” (2021) 1 Legalities 162.
Christian Whata “Biculturalism in the Law: The I, the Kua, and the Ka” [2018] WkoLawRw 3; (2018) 26 Wai L Rev 24. Christian Whata “Tikanga and the Law: A Model of Recognition” (2023) 4 Amicus Curiae 610.
Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Nations Declaration on the Rights of Indigenous Peoples” (2019) 1 NZ L Rev 85.
David Williams “Justiciability and Tikanga: Towards ‘Soft’ Legal Constitutionalism” [2021] 29 NZULR 649.
Dean Knight and Mihiata Pirini “Ellis, tikanga Māori and the common law: relations between the first, second and third laws of Aotearoa New Zealand” (2023) Public Law 557.
Edward Willis “Legal Recognition of Rights Derived From the Treaty of Waitangi’ (2010) 8 NZPIL 217.
ET Durie “Custom Law: Address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 VUWLR 325.
ET Durie “F.W. Guest Memorial Lecture 1996: Will the Settlers Settle? Cultural Conciliation and Law” (1996) 8 OLR 449.
Hanna Wilberg “Judicial Remedies for the Original Breach” [2007] 4 NZ L Rev 713. Helen Winkelmann “Picking up the Threads” (2021) 19 NZJPIL 1.
Jim Evans “What Does it Mean to Say that Someone has a Legal Right?” (1998) 9 Otago LR 304.
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.
Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern New Zealand Law” (2013) 21 WLR 1.
Joseph Williams “‘Too Far, Too Soon’: Speech Given on 3 May 2023 at the Wānanga on Tikanga and the Law” (2023) 4 Amicus Curiae 599.
Laura Lincoln “Takamore v Clarke: An Appropriate Approach to the Recognition of Maori Custom in New Zealand Law?” (2013) 44 VUWLR 141.
Linda Te Aho “Tikanga Māori, Historical Context and the Interface with Pākehā Law in Aotearoa/New Zealand” (2007) 10 Yearbook of New Zealand Jurisprudence 10.
Māmari Stephens “The Children of the Takamore Case and the Price of Going Home” (2017) 5 Te Tai Haruru 59.
Maria Hook, Ceri Warnock, Barry Allan and Mihiata Pirini “Tort to the Environment: A Stretch Too Far or a Simple Step Forward? Smith v Fonterra Co-operative Group Ltd and Others [2020] NZHC 419” (2021) JEL 195.
Mark D Walters “The “Golden Thread” of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982” (1999) 44 McGill L J 711.
Natalie Coates “The recognition of tikanga in the common law of New Zealand” [2014] NZSC 108; (2015) 1 NZLR 1.
Nicole Roughan “The Association of State and Indigenous Law: A Case Study in ‘Legal Association’” (2009) 59 UTLJ 135.
Paul Heath “One Law For All” (2007) 10 Yearbook of New Zealand Jurisprudence 194.
Paul McHugh “Aboriginal Title in New Zealand: A Retrospect and a Prospect” (2004) 2 NZJPIL 139.
Paul Rishworth “Writing things unwritten: Common law in New Zealand’s constitution” (2016) 14 ICON 137.
Rebecca Walsh, “Takamore v Clarke: A missed Opportunity to Recognise Tikanga Māori?” (2013)19 AULR 247 .
Robert Joseph “Frozen rights?: The right to develop Maori treaty and aboriginal rights” (2011) 19 WLR 117.
Robert Joseph “Re-Creating Legal Space for the First Law of Aotearoa-New Zealand” [2009] WkoLawRw 5; (2009) 17 Waikato Law Review 74.
Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” (2022) 29 Canterbury Law Review 27.
Shaunnagh Dorsett “‘Since Time Immemorial’: A Story Of Common Law Jurisdiction, Native Title And The Case Of Tanistry” [2002] MULR 3.
Sian Elias “The Meaning and Purpose of the Treaty of Waitangi” (October 2015) Māori Law Review.
Sir Robin Cooke “The Dynamics of the Common Law” [1990] NZLJ 261
Susan Glazebrook “Tikanga and Culture in the Supreme Court: Ellis and Deng” (2023) 4 Amicus Curiae 287
Wesley Newcomb Hohfeld “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale LJ 16.
E Legal Encyclopaedias
Halsbury’s Laws of England (5th ed, 2012, online ed) vol 32 Custom and Usage.
Salmond on Jurisprudence (1st ed, 1902).
F Parliamentary and Government Materials
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001). Law Commission He Poutama (NZLC SP24, 2023).
G Dissertations
Emma Gattey “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?” (dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago, 2013)
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).
Paul McHugh “The Aboriginal Rights of the New Zealand Māori at Common Law” (LLB (Ph.D.) Dissertation, University of Cambridge, 1987).
G Internet Sources
Kate Mackay “Peter Ellis, Tikanga and a Precedent For Posthumous Appeals” (30 September 2020) Equal Justice Project <www.equaljusticeproject.co.nz>.
Māni Dunlop “Whānau acted according to tikanga when taking Tommy Murray’s body, cousin says” (10 June 2022) New Zealand Herald <www.nzherald.co.nz>.
Māni Dunlop “Widow vows to take legal action as husband’s body forcibly taken by 71hanau and buried” (9 June 2022) NewsHub <www.newshub.co.nz>.
H Other Resources
Dame Helen Winkelmann, Chief Justice of New Zealand “The power of narrative – shaping Aotearoa New Zealand’s public law” (speech to Public Law Conference, Dublin 6-8 July 2022) at 13
Ellis v R [2020] NZSC Trans 19.
Ellis v R [2019] NZSC Trans 31.
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).
Joe Williams He Aha Te Tikanga Māori (paper presented to the Law Commission, 1998).
Michael Belgrave Mäori Customary Law: from Extinguishment to Enduring Recognition (unpublished paper for the Law Commission, Massey University, Albany, 1996).
Mihiata Pirini “Māori Legal Issues in the Supreme Court, 2013-2023” (forthcoming).
Smith v Fonterra Submissions for Te Hunga Rōia Māori Aotearoa (Māori Law Society) SC 149/2021.
Statement of Tikanga of Sir Hirini Moko Mead and Professor Pou Temara (2020)
Takamore v Clarke [2012] NZSC Trans 9.
Word Count
Word count: 14988 (excluding the title page, contents page, footnotes and bibliography).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/UOtaLawTD/2023/15.html