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University of Otago Law Theses and Dissertations |
Last Updated: 14 April 2024
WHAKARITEA TE PĀREKEREKE: ENGAGING WITH LEGAL PLURALISM IN
AOTEAROA/NEW ZEALAND LEGISLATION TO FACILITATE FUTURE CONSTITUTIONAL TRANSFORMATION
Mila Urlich
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Ōtākou Whakaihu Waka
October 2023
ACKNOWLEDGEMENTS
To my supervisor, Mihiata Pirini, for your invaluable guidance, and for maintaining a belief in my abilities even when I did not.
To my whānau, for your endless aroha, and particularly Keziah and my māmā, for patiently proofreading a piece of writing that might as well have been written in another language.
To Te Rōpū Whai Pūtake, for always providing a welcome distraction from my study.
To my friends, for always matching my chaos with calm or equally as much chaos, and for always being able to know which one I need.
And to Kyle, for being my pou these last six years, even throughout my temporary periods of insanity in this process.
Ehara taku toa i te toa takitahi, engari he toa takitini
My success is not mine alone, it is the work of many.
TABLE OF CONTENTS
I INTRODUCTION
Aotearoa/New Zealand is a legally pluralist society. We are currently being inundated with discussion around how tikanga Māori and Aotearoa/New Zealand state law relate to one another, with the Ellis case,1 the recognitions of places as legal persons,2 and the recent Law Commission report He Poutama,3 as some examples which have all been covered extensively by legal scholars and journalists alike. In the course of his work on He Poutama, Justice Whata has dubbed it “a Cambrian explosion”.4
However, the orthodox position maintained by the state is that Aotearoa/New Zealand is a monolegal society, with state legislation at the apex. As a result, Aotearoa/New Zealand’s constitutional foundations are uncertain at best, incoherent or illegitimate at worst. The starting point for this dissertation is that we ought to try and strengthen these foundations, to create greater constitutional legitimacy.
This dissertation builds from existing scholarship and acknowledges that ultimately constitutional transformation is necessary to reach maximum constitutional legitimacy for Aotearoa/New Zealand, because the current arrangements are designed to recognise only one source of valid law and have nearly two centuries of anti-Māori jurisprudence behind them.5 However, I take the “middle-ground” position, which is that this transformation is not likely to occur imminently, and it remains useful to explore whether it is possible for the state law to relate to tikanga Māori under the current arrangements in a way which is constructive, respectful, and might “open the door” to future constitutional transformation.6 As I explore in Chapter 2, this position also amounts to a “strong form of weak” legal pluralism.
1 Ellis v R [2022] NZSC 114.
2 Te Awa Tupua 2014; Te Urewera Act 2014.
3 Law Commission He Poutama (NZLC SP24, 2023).
4 Pete McKenzie “Explosion of ideas’: how Māori concepts are being incorporated into New Zealand law” The Guardian (online ed, Wellington, 16 October 2021).
5 John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” (2008) 12 Journal of Pacific Law 56 at 59 – “...the use of law as an explicit instrument of colonisation”.
6 Claire Charters “Recognition of Tikanga Māori and the Constitutional Myth of Monoculturalism: Reinterpreting Case Law” in R Benton and R Joseph (eds) Waking the Taniwha: Māori Governance in the 21st Century (Thomson Reuters, Wellington, 2021) 611 at 612.
I utilise a metaphor of a seedbed as the current legal landscape in Aotearoa/New Zealand, and this seedbed needs to be prepared in such a way so the seeds of constitutional transformation may be sown into it. This derives from the following whakataukī:
Kohikohi ngā kākano, whakaritea te pārekereke, kia puāwai ngā hua
Gather the seeds, prepare the seedbed carefully, and you will be gifted with an abundance of food.
The seedbed needs to be an environment which is conducive to the burgeoning of constitutional transformation; it must be compatible with the essential characteristics required for constitutional transformation. This includes adherence to Te Tiriti o Waitangi which prescribes that the Crown protect Māori in the unqualified exercise of chieftainship over their lands, homes and taonga.7
The most effective way to pursue this under the current arrangements is through legislation, because Parliament has the ability to create an unlimited variety of creative and comprehensive legislative frameworks. Many different types of provisions that provide recognition to tikanga Māori to one extent or another already exist in Aotearoa/New Zealand legislation. Therefore, we must be able to determine with some justification as to which type is best suited to acting as the seedbed for our purposes.
To do this, this dissertation applies a typological framework of legal pluralism developed by Geoffrey Swenson to Aotearoa/New Zealand legislation.8 Legal pluralism is often defined as when more than one legal system exists in a single social field.9 It is a broad concept that is widely applicable to the real world, and most, if not all, modern states experience legal pluralism whether it is acknowledged by the state government or not. The physical forms and dynamics legal pluralism can assume are infinite and tend to be rooted in the state’s historical and political context, so as such there is no standardised relationship between the state and non- state legal systems.10
7 Hugh Kawharu translation of the te reo Māori version of the Treaty, published in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Auckland, 2005).
8 Geoffrey Swenson “Legal Pluralism in Theory and Practice” (2018) 20 International Studies Review 438.
9 Sally Engle Merry “Legal Pluralism” (1988) 22 Law and Society Rev 869 at 870.
10 Val Napoleon “Legal Pluralism and Reconciliation” (November 2019) Māori LR 1.
I have chosen Swenson’s model in particular for its categorical nature. Swenson’s model consists of two parts – archetypes and strategies – and each part has a set series of variations. Because it is categorical, it makes it easier to identify the merits and weaknesses of different types of legislative provisions. It also assists us to ground legal pluralism in reality, a concept that otherwise tends to be very abstract and jurisprudential. Furthermore, it helps us draw stronger connections between important concepts like legal pluralism and constitutional transformation.
Following this application, I consider how we might further give effect to the “bridging” strategy in Aotearoa/New Zealand legislation. I find two interesting areas we might consider applying “bridging” in, with education legislation and in coordinating a legislated action plan under the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration).
Chapter 2 explains why Aotearoa/New Zealand demonstrates constitutional incoherency. It positions my arguments on Griffiths’ continuum of legal pluralism and justifies this dissertation’s focus on the interactions between tikanga Māori and state law at the legislation level rather than at common law.
Chapter 3 explains Swenson’s model and applies it to Aotearoa/New Zealand and explains my proposed fifth archetype of legal pluralism, the “coactive” archetype. I apply the strategies to a select variety of provisions are already found in Aotearoa/New Zealand legislation.
Chapter 4 identifies how different elements of Swenson’s model relate to the goal of improving Aotearoa/New Zealand’s constitutional legitimacy and takes a normative position relative to those findings. Where it is found that engaging the bridging strategy is best suited to this end, I will explore ways in which bridging may be utilised and coordinated on a wider basis. Chapter 5 contains a brief conclusion.
From this analysis, I hope to support the position that it is not a binary choice between constitutional transformation and acting within the existing arrangements. Instead, we can use state law creatively yet carefully to give effect to the middle-ground position of preparing the seedbed for future constitutional transformation. In using Swenson’s model, I hope to help deepen our understanding and inform the way we approach legal pluralism in Aotearoa/New Zealand, and particularly to highlight the value of independent Māori authorities as exercises of “bridging”.
II CONTEXTUALISING LEGAL PLURALISM IN AOTEAROA/NEW ZEALAND TODAY
Aotearoa/New Zealand is currently suffering from a degree of constitutional incoherency because state law actors simultaneously acknowledge and deny the status of tikanga Māori as law. Legal pluralism exists in Aotearoa/New Zealand, and state law needs to be providing for that reality. As legal pluralism may take on many forms, we must identify what particular form of legal pluralism will provide Aotearoa/New Zealand with greater constitutional legitimacy, and also identify the means through which we might pursue that form under the current constitutional arrangements.
Aotearoa/New Zealand state law has, for many years, maintained the narrative that Aotearoa/New Zealand is a mono-legal country. It has done so by upholding jurisprudential ideas which have the effect of attacking the validity and status of tikanga Māori as law. One such idea is that Māori ceded sovereignty via the Treaty of Waitangi in 1840, and with that their law-making ability.11 Another being the idea that the Treaty of Waitangi is merely an international treaty and therefore not of any enforceable legal effect,12 which prevents its use as a vehicle for importing tikanga Māori.13 A third is the idea that tikanga Māori is merely custom or lore - terms used to denote a status inferior to law, and which imply that tikanga is static, limited in its applicability to modern society and subject to becoming obsolete.14 These ideas are reinforced by the constitutional doctrine of parliamentary supremacy, and the dominance of legal positivist thinking.15
However, this narrative of mono-legalism is unconvincing once we consider the incorrect factual bases of these ideas. The Waitangi Tribunal found that Māori did not cede sovereignty
11 Chris Finlayson and James Christmas He Kupu Taurangi: Treaty Settlements and the Future of Aotearoa New Zealand (Huia Publishers, Wellington, 2021) at 14.
12 Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308.
13 John Dawson, above n 5, at 58.
14 R v Symonds (1847) NZPCC 387; Eddie Durie "Custom Law: Address to the New Zealand Society for Legal and Social Philosophy" (1994) 24 Victoria University of Wellington Law Journal 331.
15 Claire Charters, above n 6, at 616-617.
through the Treaty of Waitangi, and therefore Māori did not cede the power to make or practise tikanga Māori as law.16 The Treaty could have very well been “used as an umbrella under which the NZ courts could recognise Māori customary law”.17 It clearly “envisaged a framework within which the two forms of political and legal authority would co-exist”.18 By virtue of the guarantee of rangatiratanga over “taonga katoa” in Article 2, the practice of tikanga was guaranteed by the Treaty of Waitangi, because tikanga Māori is a taonga.19 Increasingly, state law is also now beginning to acknowledge tikanga Māori as an independent source of law and as the first law of these lands; for example, by Aotearoa/New Zealand’s highest court in the Ellis v R case.20
Regardless of its state law recognition, tikanga Māori is a complex and complete legal system.21 It can be understood as a “normative system” of law “supported by a social and ritual force”;22 Eddie Durie describes tikanga as setting an aspirational standard of behaviour.23 Tikanga is considered to be “the values, standards, principles or norms the Māori community subscribe to, to determine the appropriate conduct”.24 It is a system based on reciprocal relationship- based obligations, and there are relationships between the principles, between people, between people and the environment, between people and the ātua25 and also between generations. How tikanga might apply in a given situation is determined by the relevant space, place and time.26 In this way, tikanga Māori is dynamic, holistic and flexible. It operates differently to the common law system, but it is law nonetheless, and should not be reduced to lore.
16 Waitangi Tribunal He Whakaputanga me te Tiriti: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at xxii.
17 John Dawson, above n 5, at 58 (macron added).
18 Carwyn Jones New Treaty, New Tradition (Victoria University Press, Wellington, 2022) at 42.
19 Robert Joseph “Re-Creating Legal Space for the First Law of Aotearoa New Zealand” [2009] WkoLawRw 5; (2009) 17 Wai L Rev 74 at 76–77.
20 Ellis v R, above n 1.
21 Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Auckland, 2005) 330 at 330.
22 Hirini Moko Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, revised ed 2016) at 6-8.
23 It is more about upholding values than it is about breaking rules, about meeting “idealised standards of behaviour attributed to famous ancestors” from Eddie Durie, Custom Law, above n 14 at 3.
24 Eddie Durie cited in Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 16.
25 Ancestors of ongoing influence.
26 Eddie Durie, above n 14, at 1.
Despite being systemically oppressed for the best part of two centuries, tikanga “has defied the odds by surviving” and continues to operate in Māori communities today.27 Therefore, beyond any legal justification, legal pluralism exists in Aotearoa/New Zealand as a matter of fact. As Brian Tamanaha put it, “despite widespread expectations that postcolonial countries will eventually evolve towards unified legal systems, it is now evident that legal pluralism will endure".28
In this way, Claire Charters calls monolegalism in Aotearoa/New Zealand a “myth”.29 However, state law actors continue to perpetuate this myth, and this is creating constitutional incoherency. Different state law actors often contradict one another. For example, the legislature created the Waitangi Tribunal to undertake comprehensive investigations on breaches of Te Tiriti, but routinely ignores their findings.30
To resolve this incoherency and create greater constitutional legitimacy, we must provide consistently for the existence of legal pluralism. Geoffrey Swenson importantly stated that legal pluralism is a help, not a hindrance, to “forming vital foundations of state legitimacy”.31 He similarly stated that “it is not enough to merely recognise that legal pluralism exists; scholars and policymakers must understand how legal pluralism actually functions”.32 Therefore, we must provide for a form of legal pluralism that reflects the factual reality in order to improve constitutional legitimacy.
27 Ani Mikaere, above n 21, at 330.
28 Brian Tamanaha “Legal pluralism across the global South: colonial origins and contemporary consequences” (2021) 53 J Legal Plur 168 at 198.
29 Claire Charters, above n 6.
30 Leigh-Marama McLachlan “Government accused of ignoring Waitangi Tribunal Reports” Radio New Zealand (online ed, New Zealand, 17 December 2018) – “in the past 40 years, the Crown has only fully-settled the claims raised in 21 tribunal reports out of a total 130 reports that have been completed.”
31 Geoffrey Swenson, above n 8, at 458.
32 Geoffrey Swenson, above n 8, at 440.
As stated in the introduction, legal pluralism is a very broad and abstract concept, and not all legal pluralism is created equal. There are forms of legal pluralism where the existence of the non-state system is completely denied. To understand further what will create constitutional legitimacy for Aotearoa/New Zealand, we must explore the concept in the context of Aotearoa/New Zealand’s existing constitutional arrangements.
Anne Griffiths’ continuum of legal pluralism is useful positioning this discussion.33 At one end of the continuum is “weak” legal pluralism. Weak legal pluralism represents Indigenous law as something other to the state law. State law is central and possesses normative legitimacy and the full discretion as to the recognition of the Indigenous law. In 2009, Natalie Coates found that Aotearoa/New Zealand was predominantly engaged in weak legal pluralism, because state legislation is at the top of the hierarchy and any recognition of tikanga is subject to what legislation provides for, and this remains the case today.34
At the other end of Griffiths’ continuum is “strong” legal pluralism, which recognises that multiple legal orders exist independently and equally, and state law is not the central order.35 Aotearoa/New Zealand is not capable of achieving strong legal pluralism without first completely redeveloping constitutional understandings to rid them of all colonial assumptions of the inferiority of tikanga Māori. This complete redevelopment has been dubbed “constitutional transformation” by prominent Māori legal scholars including Moana Jackson.36
The argument for constitutional transformation is that because the current constitutional arrangements cannot account for shared sovereignty, despite Te Tiriti o Waitangi having “clearly envisaged” such an arrangement, they are not fit for purpose and must be completely reimagined so that they can be.37 Matike Mai Aotearoa imagined developing the new
33 Anne Griffiths “Customary Law in a Transnational World: Legal Pluralism Revisited” (paper presented to Conference on Customary Law in Polynesia, 12th October 2004) at 13.
34 Natalie Coates “Should Māori Customary Law Be Incorporated into Legislation?” (LLB (Hons) Dissertation, University of Otago, 2009) at 17 and 30.
35 Anne Griffiths, above n 33, at 15.
36 Jackson wrote, spoke and advocated on the subject extensively, see for example Moana Jackson “Changing Realities: Unchanging Truths” (1994) 10 Australian Journal of Law and Society 115.
37 Carwyn Jones above n 18, at 42.
constitution would involve a model based on tikanga, kawa, He Whakaputanga, Te Tiriti and “other indigenous human rights instruments which enjoy a wide degree of international recognition”.38
Therefore, constitutional transformation to achieve “strong” legal pluralism would create the maximum constitutional legitimacy for Aotearoa/New Zealand. However, constitutional transformation will not be easily achieved.39 Political discourse, regardless of its factual merit, has a significant influence on law-making in Aotearoa/New Zealand, shown particularly in the current election cycle.40 As David Williams stated, “Pākehā power-holders are unwilling to debate, let alone accommodate, tangata whenua aspirations if they perceive that this will lead to a divided national sovereign, separatism, or parallel justice systems”.41 John Dawson has also argued that the core underpinnings of the state legal system are inclined to resist any inclusion of tikanga Māori,42 let alone a complete overhaul of the constitutional landscape. Veronica Tawhai considers it will require a dedicated movement of education and “conscientisation” to become possible.43 Given this, it is unlikely to be imminent.
However, there also exists a third, hybridised position. If the state law actively engages in a relationship with tikanga Māori under the current constitutional arrangements, this may have a catalytic effect, and it may make it easier for constitutional transformation to occur in the future. Claire Charters describes this as legal pluralism “that might open the door” to greater constitutional change.44 This remains a form of weak legal pluralism, but it is a “strong form of weak legal pluralism”, as Natalie Coates puts it, because while does not displace the centrality of state law, it provides increasingly greater recognition to tikanga, on a trajectory towards strong legal pluralism.45
38 The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation
(Iwi Chairs’ Forum, February 2016) at 14.
39 Sentiment echoed by Natalie Coates “The Recognition of Tikanga Māori in the Common Law of New Zealand” (2015) NZ Law Rev, and John Dawson, above n 5, at 62.
40 For example, a main campaign slogan of the ACT Party this election is “end division by race”.
41 David Williams "Unique Treaty-Based Relationships Remain Elusive" in Michael Belgrave, Merata Kawharu and David Williams (eds), Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, 2005) 369 at 370.
42 John Dawson, above n 5, at 60.
43 Margaret Mutu and Veronica Tawhai with Taylor Cook and Safari Hynes “Dreaming Together for Constitutional Transformation” (2021) 12 Counterfutures 35 at 39-41.
44 Claire Charters, above n 6, at 612.
45 Natalie Coates “Should Māori Customary Law Be Incorporated into Legislation?” (LLB (Hons) Dissertation, University of Otago, 2009) at 18 and 30.
There remain limitations with this position, as in the meantime it still supports Crown sovereignty, which is inconsistent with Te Tiriti and our hopes of greater constitutional legitimacy. However, it is seen by scholars including Charters and Val Napoleon as a necessary first step to achieving greater reconciliation. Napoleon has stated:46
While there is certainly truth in the bleak statement that weak pluralism is continuing the process of colonisation, neither state nor indigenous law are going anywhere so we need to navigate the way they relate to each other.
Therefore, it remains a worthwhile undertaking to analyse how the legal pluralism relationship between state law and tikanga Māori may be developed under the current weakly pluralist constitutional arrangements, in ways which will make constitutional transformation more realistically achievable in the future. To resume the earlier metaphor, this form will make for a fertile seedbed, in which the seeds of constitutional transformation may be sown and grow.
Under the current constitutional arrangements, there are two main ways which the relationship between state law and tikanga Māori can be developed: via judge-made common law or legislation enacted by Parliament. There are substantial differences in the way each operates, which will impact upon their respective abilities to create greater constitutional legitimacy. As I explain in the following paragraphs, the way the common law operates makes it an unsuitable “seedbed”. Although it is also imperfect, legislation is relatively better suited to this end.
The Ellis decision is the most recent among a series of judgements in the last decade that have reignited the common law discussion on the relationship between tikanga Māori and New Zealand state law.47 Ellis provided a unique opportunity for the New Zealand Supreme Court to describe this relationship in a case where neither party contested that tikanga Māori was relevant.48 The majority in Ellis stated unequivocally that tikanga is part of the “fabric of the
46 Val Napoleon, above n 10.
47 Ellis v R, above n 1.
48 Ellis v R, above n 1, at [313].
law of Aotearoa New Zealand”.49 It recognised that tikanga Māori is a complete legal system and that it was the first law of these lands.50
The Court also recognised the real risks to “tikanga’s integrity of dialogue” in it becoming frozen as a common law precedent, and the need for mitigation.51 It attempted to mitigate this risk by opting to do away with the “colonial relic” that was the test for considering tikanga legally enforceable, first set out in General Trustee v Loasby, in favour of a new, “modern approach”.52 This approach will apply uniquely to different factual and legal backgrounds and will include “careful weighing of common law and tikanga principles according to facts and the needs of the case”.53 In this way, tikanga Māori will now be more like a relevant consideration to any decision, more than enforceable law, and therefore might not ever be determinative.54
The Supreme Court’s decision to implement this modern approach has many implications, some of which reflect a wider problem with using the common law as means for conducting the relationship between state law and tikanga Māori, where a goal of the relationship is to provide Aotearoa/New Zealand with greater constitutional legitimacy.
For one, the wānanga in Ellis was described by Justice Glazebrook in a recent speech as the “Rolls-Royce” version. Glazebrook stated that the process was extremely costly and time- consuming, and therefore out of reach for the average appellant.55 This means that due to resource constraints we may have tikanga principles being applied by judges underqualified to do so, without first being thoroughly considered by experts, despite the majority in Ellis’ caution against doing so.56
49 Ellis v R, above n 1, at [126].
50 Ellis v R, above n 1, at [22].
51 Ellis v R, above n 1, at [272].
52 Public Trustee v Loasby [1908] NZGazLawRp 71; (1908) 27 NZLR 801 (SC).
53 Ellis v R, above n 1, at [267] per Williams J.
54 Dean Knight and Mihiata Pirini “Ellis, tikanga Māori and the common law: relations between the first, second and third laws of Aotearoa New Zealand” (October 2023) Public Law 557 at 564.
55 Susan Glazebrook and Mai Chen “Tikanga and Culture in the Supreme Court: Ellis and Deng” (2023) 4 Amicus Curiae 287 at 295.
56 Ellis v R, above n 1, at [180].
Secondly, the majority of cases discussing the interaction of state law and tikanga Māori that have been the main developers of jurisprudence in this area have not involved any Māori parties.57 There is a range of possible reasons for this, but a possible one is that the court system in Aotearoa/New Zealand is plagued by a lack of access to justice,58 and Māori are disproportionately affected by it.59 Therefore, there is a risk that tikanga will be distorted and warped as it continues to only be engaged by a particular demographic with a particular type of issues. There is a risk it will be used merely as another weapon in the well-financed litigant’s arsenal, without respect for its true nature and origins as the Māori legal system. In the words of Annette Sykes:60
I would hate to think we are allowing the use of Māori values to advance a position of justice which would be denied to Māori because of the institutional pitfalls that Māori confront in their quest for justice daily.
However the primary cause for concern is that the common law develops on a case-by-case basis. Issues tend to be assessed only within their immediate factual context, and precedent is binding and is not overturned lightly. Therefore, the common law is not well-placed to account for the broader impacts of a given decision. Not only is this incompatible with the way tikanga operates – flexibly and as a part of the wider context – but it is not capable of addressing issues on a broad or general level, which is what is required to provide greater overall constitutional legitimacy. This was recognised by the Law Reform Commission of Western Australia where they stated, “the common law... cannot be expected to provide a coordinated, consistent recognition of Aboriginal customary law.”61
For these reasons, the common law appears to be an unsuitable means of continuing to proactively develop the relationship between state law and tikanga Māori. In relating back to
57 Noted by Williams J in Ellis v R, above n 1, at [246].
58 Helen Winkelmann “Access to Justice – Who needs lawyers?” [2014] OtaLawRw 2; (2014) 13 Otago LR 229.
59 Māori are disproportionately negatively affected at all points throughout the justice system, detailed in many reports including Waitangi Tribunal Tū Mai te Rangi! (Wai 2540, 2017) and Turuki! Turuki! The Second Report of the Safe and Effective Justice Advisory Group (2019).
60 Annette Sykes “The Myth of Tikanga in the Pākehā Law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7 at 26.
61 Law Reform Commission of Western Australia Part III - Recognition of Aboriginal Customary Law (Quality
Press, Project 94: Discussion Paper, 2005) 61 cited in Natalie Coates, above n 34, at 26.
Griffiths’ continuum and Coates’ application of it, the common law is not capable of creating a “strong form of weak legal pluralism”.
The legal pluralism relationship may also be developed by legislative means. This method is more capable of promoting a “strong form of weak legal pluralism” than the common law is. This is primarily because of Parliament’s virtually unlimited power to legislate, which means it is possible for comprehensive and creative frameworks for recognising tikanga Māori to be enacted. The legislature is not constrained by any past precedent, and is able to consider the “bigger picture” when making law, whereas the judiciary is not.
However, there already exists many different types of legislative provisions that recognise tikanga Māori to varying degrees. Only some of these types will be capable of promoting a “strong form of weak legal pluralism” that will make a for a suitable “seedbed”. As including tikanga Māori in legislation assumes its inferiority to state law and makes its validity subject to state law, we must tread carefully to ensure any such provision still allows tikanga to operate authoritatively and with integrity, and does not attempt to subvert or control its use. Therefore, further analysis is required on each of these different types of legislative provisions to understand which of them might capable of doing so. The following chapters will undertake this exercise, using a typological framework developed by Geoffrey Swenson.62
CONCLUSION
This chapter has shown that Aotearoa/New Zealand is currently suffering from a degree of constitutional incoherency. To resolve this incoherency, we need to engage with and provide for the legal pluralism that exists in this country. We must begin by trying to engage a “strong form of weak” legal pluralism which will prepare the seedbed for eventual constitutional transformation. The vehicle we ought to use to pursue this is legislation, rather than common law. The next chapter will use a framework to explore further how we might do this in practice.
62 Geoffrey Swenson, above n 8.
III ANALYSING LEGAL PLURALISM IN AOTEAROA/NEW ZEALAND LEGISLATION
This chapter describes a typological framework of legal pluralism developed by Geoffrey Swenson in his 2018 article “Legal Pluralism in Theory and Practice”, and applies it to Aotearoa/New Zealand legislation. The framework is useful, despite being developed in a different context, because it helps us to identify practical manifestations of legal pluralism, an otherwise extremely abstract concept. It creates specific categories of legal pluralism, allowing us to identify forms of legal pluralism with more precision as opposed to spectrum models like Griffiths’, which while helpful, are more vague.
The model consists of two parts: archetypes and strategies. The archetypes describe the overarching general dynamic of the relationship between the state and non-state legal systems,63 whereas the strategies concern the nature of individual interactions between the state and non-state legal systems.64 Engaging different strategies will have varying effects on the archetype; it may reinforce the current archetype or encourage a shift towards a different archetype.65 The relationship between the state and non-state could be of an overall adversarial, aggressive nature, and where the individual interactions within the course of that relationship are of that same nature, the archetype would be reinforced. Alternatively, the individual interactions could be of a more constructive nature, which would proactively influence the archetype of the relationship to shift to a more constructive one.
Swenson’s model sets out four archetypes. They are combative, competitive, cooperative and complementary. The archetypes summarise the core features of the relationship between the state and non-state legal systems.66 Swenson appears to envision the four archetypes as points
63 Geoffrey Swenson, above n 8, at 442.
64 At 442.
65 At 442.
66 At 443.
along a spectrum, in the order described from least to most successful with reference to state- building.67
“Combative” describes a dynamic where the systems are “overtly hostile” to one another.68 A combative relationship does not necessarily involve violence, but often does. This archetype prevails in extremely antagonistic circumstances. “Competitive” is where the state’s authority is not overtly challenged, but the non-state still retains substantial autonomy.69 The two systems are willing to engage with one another and respect one another’s right to exist to an extent, but deep tensions remain. Swenson states the most common archetype in real-life is competitive, and it is the default for post-conflict situations.70
“Cooperative” involves the non-state system retaining significant authority, but by and large accepting the state’s normative legitimacy.71 The two systems are willing to work together towards shared goals. However, cooperative legal pluralism can exist without democracy and the dominant law may not necessarily be just. Finally, “complementary” is where the non-state system is subordinated and structured by the state and operates under the state umbrella, without substantial autonomy to reject state decisions.72
The second part of Swenson’s framework, which my dissertation will focus most closely on, is the strategies. I focus on the strategies because they are what we have the ability to control and consciously engage in their particular exercise. As stated earlier, the strategies focus on individual points of interaction between the state and non-state. Swenson notes that the ways state and non-state interact with one another is inherently fluid, so the strategies are identified in particular laws and institutions.73 There are five strategies: repression, subsidisation,
67 At 443.
68 At 443.
69 At 444.
70 At 444.
71 At 445.
72 At 445.
73 At 458.
incorporation, harmonisation, and bridging. These are ordered from least to most constructive for successful “state-building”.74
“Repression” involves the state system trying to fundamentally undermine the non-state system.75 This includes situations in which the state system completely denies the existence of the non-state system or outlaws its practices. “Subsidisation” is where the state system tries to increase its capacity, performance and appeal relative to the non-state system.76 One way it may do this is by symbolically representing aspects of the non-state system within the state system.77 However, the representation aims to ultimately eliminate the need for the non-state system. Neither repression nor subsidisation involve constructive engagement with the non- state system, rather they aim to ideally eliminate it.
“Incorporation” is where the “distinction between state and non-state is eliminated, at least from the state’s perspective”.78 It makes the non-state standards and processes enforceable as law, but also makes them subject to state law regulation. It can include state support for non- state courts, elections or other professional regulation. It involves a degree of constructive engagement, but only as much as is necessary to strengthen state law authority. “Harmonisation” occurs where the outputs of the non-state system are consistent with the state’s core values.79 In practice it goes hand in hand with incorporation efforts, as consistent outcomes are likely to be the result of the two systems being combined to some degree. In this way, harmonisation is less of a strategy that is actively engaged and more something that arises incidentally as a result of other strategies.
“Bridging” is defined by Swenson as occurring where “cases are allocated between the state and non-state systems as appropriate, based on state law and preference”.80 This strategy involves the highest level of constructive engagement between the state and non-state systems out of the five. I believe the term “case” is used to mean legal issues, as opposed to strictly
74 At 448 - Also becomes clear when Swenson associates strategies such as repression and subsidisation with unsuccessful state-building endeavours in his Afghanistan case study at 456-457.
75 At 448.
76 At 448.
77 At 448.
78 At 447.
79 At 447.
80 At 446.
applying to court cases. And so, the bridging strategy can be restated generally as there being separate fora within which the state and non-state legal system respectively operate and have authoritative decision-making power. These spaces would likely have been created or designated by the state law, but, once created, the state would not interrupt the exercise of non- state law within that space. It would create a meaningful choice for citizens to exercise their preferences.
Swenson developed this framework in the context of post-conflict states. He did this because he perceived post-conflict states as having weak institutions and limited government authority, and engaging with legal pluralism in those situations could serve as a way to avoid further conflict between the new state and the non-state system.81 Swenson uses Timor-Leste and Afghanistan as two contrasting examples to which to apply the model. Although the model is designed to describe and theorise about legal pluralism in post-conflict states, I do not consider that this limits the applicability of the model to New Zealand as a colonial state. Swenson states in the article that the model can also promote good governance and development in all legally pluralist settings.82
This framework has already been applied to the colonial context in Canada, by Indigenous legal scholar Val Napoleon.83 Napoleon takes the position that a thorough understanding of how legal pluralism functions is the starting point for reconciliation, which is “an ongoing process of establishing and maintaining respectful relationships” between state law and Indigenous law.84 Assessing the legally pluralist status quo helps us understand what kind of divide the reconciliation is imagined to take place across.85 An essential part of Napoleon’s normative position is that the best form of legal pluralism for reconciliation is one that involves no assumption of superiority on the part of state law, and no assumption of inferiority on part of the non-state law.86 Napoleon identifies shortcomings in Swenson’s model in respect of this
81 Geoffrey Swenson Contending Orders: Legal Pluralism and the Rule of Law (Oxford University Press, Oxford, 2022) at 48.
82 Geoffrey Swenson, above n 8, at 438.
83 Val Napoleon, above n 10.
84 Truth and Reconciliation Commission of Canada Honouring the truth, reconciling for the future (2015) at 11.
85 Val Napoleon, above n 10.
86 Val Napoleon, above n 10.
position,87 but still considers that it provides a framework for imagining “non-oppressive, decolonised forms of legal pluralism”, and that many of his insights are applicable to Canada.88 Napoleon’s application of Swenson’s framework to a legal system with indigenous and colonial features helps underscore the value of considering how it might be applied to Aotearoa New Zealand.
One thing that both a post-conflict society, and Aotearoa/New Zealand as a settler-colonial society, have in common is a need to pursue greater stability and legitimacy in their constitutional foundations. As established in the first part of this dissertation, Aotearoa/New Zealand’s constitutional ethos does not currently reflect its reality. Therefore, there is still a state-building exercise that must occur in both contexts.
However, there are some clear differences between the post-conflict context and the colonial context that become apparent throughout Swenson’s analysis and which Napoleon does not explicitly address in her analysis. The main one is that the state-building exercise for a post- conflict society in Swenson’s view necessarily involves the consolidation of state power.89 But consolidation of state power will not provide Aotearoa/New Zealand with greater constitutional legitimacy. Rather we need to be aiming for greater equality between the two systems, as that is what was intended by Te Tiriti.
Swenson’s analysis does consider the value of cultural intelligibility and recognising the importance of the non-state legal system, but only to the extent that it will reinforce the centrality of the state legal system.90 For Swenson this is necessary because of his focus on strengthening the rule of law in post-conflict states, but this is less necessary in our context. In Aotearoa/New Zealand the rule of law is well established, and the risk of a coup d’état is considerably low.91 Swenson also appears to support a consolidation of state power because, in his case studies, non-state legal orders demonstrate extreme cultural values “unconcerned
87 Val Napoleon, above n 10 – the shortcoming being that Swenson “remains within the orbit of state law”.
88 Val Napoleon, above n 10.
89 Geoffrey Swenson, above n 8, at 445 – Swenson believes the complementary archetype is the most successful for state-building, and is present in high-capacity, effective legal environments, and this archetype necessarily involves the non-state system being “subordinate and structured by the state”.
90 Geoffrey Swenson, above n 8, at 458.
91 Swenson alludes to a violent coup (such as what occurred in Afghanistan) as being a potential consequence of not subordinating the non-state law at 450.
with basic human rights” that will place vulnerable groups at risk.92 I do not think this is a concern that is applicable to tikanga Māori.
Swenson tries in earnest to create categories that are purely descriptive, but because of the context he is working within, they carry some inherent, normative ideas of the validity of state dominance. Nevertheless, Swenson’s ideas are useful for their specificity and categorical nature, and I will extrapolate the ideas from their assumptions, and extend the model where necessary to make it applicable to Aotearoa/New Zealand. Provided this is done, using this model will create the ability for us to identify the type of legal pluralism that will provide Aotearoa/New Zealand with greater constitutional legitimacy and what we can do to pursue it.
The relationship between state law and tikanga Māori has likely progressed through at least two, if not three, of the four archetypes outlined by Swenson since 1840. This progression through the archetypes may be understood further when it is related to the journey from the “second law” to the “third law” detailed by Justice Williams in his famous Lex Aotearoa lecture and subsequent article.93
Tikanga Māori represents the first law. The arrival of the second law, English law, engaged the combative archetype, because English law and tikanga Māori “collided” and due to their differing focuses, were immediately at odds with one another. Tikanga Māori was only recognised by state law to the “extent necessary to succeed in extinguishing it”.94 Proponents of tikanga Māori equally questioned the validity of the state law, with movements such as the Kīngitanga and the Kotahitanga Parliament being established in direct response to the imposition of settler law and government.95 Napoleon also states that the archetype present during the early colonial period in Canada was combative, and given the similarities in the
92 Swenson describes this with reference to the Taliban and their attitudes towards women at 439.
93 Joe Williams “Lex Aotearoa: A Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1.
94 Joe Williams, above n 93, at 12: See Native Lands Act 1865, Preamble for an example of this.
95 Brief of Evidence of Donna Awatere-Huata, Waitangi Tribunal Mana Wāhine Kaupapa Inquiry (Wai 2700, 21 January 2021), at 19-20 - “as a people we did not sit idly by... here are just some of the actions we took: ... a King was elected at a special Kotahitanga hui... A Kotahitanga o te Tiriti o Waitangi movement began meetings”.
colonial histories of Canada and Aotearoa/New Zealand, this also makes it likely to have been engaged during Aotearoa/New Zealand’s early colonial period.96
It can be argued that the competitive archetype became apparent during the period of the “Māori renaissance” in the 1970s, called the “discrete third phase” by Williams.97 During this period there was a proliferation of legislative references to the Treaty, engagement with tikanga and te reo Māori, all prompted by large movements of Māori activism, but the core underlying tensions remained. It may now be said that Aotearoa/New Zealand is shifting towards the cooperative archetype. This is because there are increasing amounts of instances of constructive engagement occurring between state law and tikanga Māori. In fitting with Williams’ model, we are now deep into the throes of developing the “third law”. Novel co- governance models, such as Te Awa Tupua Act and Te Urewera Act, are being developed which incorporate both tikanga Māori and state law by giving legal personhood to natural entities.98 However, it still cannot be said that tikanga Māori accepts state law’s normative legitimacy, as we see continued movements against state law imposed authority due to a continued failing on the part of the state government to fully recognise and adhere to Te Tiriti, as discussed in the previous chapter.99 Thus the relationship is not completely “cooperative” by Swenson’s definition.100
Precisely which archetype the relationship between state law and tikanga Māori currently falls within could be agonised over for the remainder of this dissertation, however it is not my intention to do this. The brief observations made in this section are useful to show that the current archetype, regardless of whether it is competitive or cooperative, is not providing constitutional legitimacy for Aotearoa/New Zealand, because it does not provide for the sharing of legal and political authority as Te Tiriti prescribes. The more important consideration is which archetype we ought to pursue to improve constitutional legitimacy, and how we might do that. That is what the remainder of this dissertation will consider.
96 Val Napoleon, above n 10.
97 Joe Williams, above n 93, at 11.
98 Te Awa Tupua Act 2017 - Giving legal personhood to natural landmarks gives effect to the Māori belief of them being tūpuna.
99 For example, there continue to be protests every year at Waitangi.
100 Defined at 445 as “non-state justice authorities still retain significant autonomy and authority. Non-state judicial actors, however, have by and large accepted the state’s normative legitimacy and are generally willing to work together towards shared goals.”
I do not believe that any of the four archetypes set out by Swenson are capable of describing a relationship of legal pluralism equivalent to constitutional transformation, which the previous chapter identified as necessary to achieving complete constitutional legitimacy. This is because the framework as set out by Swenson “fails to challenge the primacy of state law”,101 as all four archetypes contain an inherent assumption that a positive, productive form of legal pluralism necessarily involves non-state law being controlled by, and serving the interests of, the state law. Instead, I am trying to identify a form of legal pluralism where state law and tikanga Māori operate alongside one another in a way which is constructive and where there is equality of recognition between them.
Therefore, I intend to extend the model to include a fifth archetype, one which imagines the coexistence of state and non-state legal system, where neither tries to eliminate, subjugate nor assume the inferiority of the other. I believe that creating further archetypes is something that Swenson imagines as a possibility, and doing so would not affect the usefulness of his framework. Swenson acknowledges that legal pluralism is fluid, and may present itself in an infinite amount of forms, therefore his list of archetypes must not be exhaustive.102 I believe the addition of a fifth archetype would strengthen Swenson’s framework and make it applicable in a greater variety of contexts where it could be well-utilised, particularly the many colonial and postcolonial societies currently at various stages of constitutional reflection and transformation.103
The fifth archetype I propose to call “coactive”, in keeping with Swenson’s “c” theme. The Cambridge Dictionary defines coactive as meaning to have an effect overall, through the cumulative effect of individual efforts.104 Some synonyms of coactive put forward by Collins
101 Alex Putzer and others “The Rights of Nature as a Bridge between Land-Ownership Regimes: The Potential of Institutionalized Interplay in Post-Colonial Societies” (2022) 11 TEL 501 at 506.
102 Geoffrey Swenson, above n 8, at 441 and 458.
103 Canada and Australia, for instance, are on similar journeys to us. Australia currently has a constitutional referendum out, and as we will briefly explore in the next chapter, Canada is implementing UNDRIP, among other things to reconcile with their Indigenous peoples.
104 Cambridge Dictionary online.
Dictionary are unified, synergetic, and interdependent.105 I think this word appropriately encapsulates the dynamic I am describing. Coactive legal pluralism would involve state and non-state law both operating autonomously and authoritatively as law, while also working together to achieve shared goals. The legal systems would respect one another’s right to exist, acknowledge the value provided to one by the other, and engage constructively with one another on issues of common interest. Coactive legal pluralism would amount to strong legal pluralism.
I will return to discuss this proposed new archetype further in Chapter 4, to analyse in more depth whether it can represent a legal pluralism relationship that would amount to constitutional transformation. In the remainder of Chapter 3, I will analyse particular interactions between state law and tikanga in legislation, and apply Swenson’s strategies to them.
Despite the framework being developed in a very different context, the strategies outlined by Geoffrey Swenson are applicable to Aotearoa/New Zealand and helpful when applied. This point may be further justified when different exercises of the strategies are identified throughout Aotearoa/New Zealand legislation. To show that multiple strategies may be active at different points of interaction at the same point in time, and also to show the applicability of the strategies to modern Aotearoa/New Zealand, recent examples from the last forty years will be used.
I have analysed a small number of legislative provisions. I have chosen these particular provisions because each of them recognises tikanga Māori in a different way: by direct reference to a particular tikanga principle, by reference to tikanga at large, by using available discretion to bring in tikanga, and by creating a framework which facilitates the use of tikanga in practice. My search for different types of provisions was guided by the observations made
105 Collins Dictionary online.
by the majority in Ellis,106 and by Natalie Coates in her dissertation Should Māori Customary Law be Incorporated into Legislation?107
I also chose examples from different areas of law that have particular significance to Māori and have been subject to large amounts of discourse and scrutiny: customary title, resource management, criminal justice and health. In this search I was aided by the areas identified by Justice Williams in “Lex Aotearoa”.108 As shown in the following sections, I found that each type of provision resembled a different one of Swenson’s strategies. In my analysis of these provisions, I found examples of repression, subsidisation, incorporation and bridging.
The law relating to the foreshore and seabed is one of the most notorious interactions between state law and tikanga Māori. The Foreshore and Seabed Act 2004 (FSA) was enacted as a direct response to the Court of Appeal’s decision in Ngāti Apa v Attorney-General.109 This decision found that it was possible for Māori customary ownership to still exist in the foreshore and seabed, and claims for such ownership could be investigated by the Māori Land Court.110 Section 13 of the FSA vested absolute ownership of the foreshore and seabed in the Crown, which had the effect of overruling the Court of Appeal decision and extinguishing any potential Māori ownership claims.
In this sense, the FSA illustrates dynamics of a repression strategy. As noted earlier in this chapter, such strategies “seek to fundamentally undermine, and ideally eliminate, the state’s non-state rivals”.111 We need to understand and apply that strategy in the unique Aotearoa/New Zealand legal context. The Māori Land Court is a creation of the state, and therefore not a “non- state justice forum”. But, for some time since its transformation from the Native Land Court, the Court has played a different role; it is much more “Māori” in character and many Māori
106 Ellis v R, above n 1, at [98].
107 Natalie Coates, above n 34, at 14.
108 Joe Williams, above n 93, at Part 5.
109 Foreshore and Seabed Act 2004; Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643.
110 Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643.
111 Geoffrey Swenson, above n 8, at 448.
feel a close connection to the Court and consider the Court to be “theirs”.112 That Court avenue was highly restricted by the FSA Act. In this sense, the FSA resembles an engagement of the “repression” strategy.
In 2010, the FSA was repealed and replaced with the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act). Section 6 of the MACA Act states that customary interests extinguished by the FSA are restored,113 and s 58 allows for applications to the High Court for recognition of customary marine title (CMT).114 Such applications must satisfy two criteria. Applicants must: hold the area “in accordance with tikanga”, and have had exclusive use and occupation from 1840 to the present.115
Section 58(1)(a) therefore directly refers to tikanga as a legal standard for measuring the satisfaction of the first criteria.116 On its face, it might therefore appear that the MACA Act engages the incorporation strategy, because it brings non-state law into state law and makes them one and the same.
However, the mentioning of tikanga in s 58 does not preclude the provision from impeding on the operation of tikanga. In practice, it is very difficult for applicants to establish CMT using s 58, and in this way, the “repression” strategy continues to be engaged at this interaction between state law and tikanga. When the Act was still at select committee, Hone Harawira MP stated the Bill was a “fraud”, and that including a te reo Māori title for it “insults the notion that [the Bill] will do anything to help Māori restore their rights to the takutai moana”.117 Annette Sykes stated that the rights under s 58 are deliberately weak.118 In a 2023 speech,
112 See for example, New Zealand Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004) at 249.
113 Marine and Coastal Area (Takutai Moana) Act 2011, s 6.
114 Marine and Coastal Area (Takutai Moana) Act 2011, s 58.
115 Marine and Coastal Area (Takutai Moana) Act 2011, s 58 – or received it through “customary transfer”: see s 58(1)(b)(ii).
116 Marine and Coastal Area (Takutai Moana) Act 2011, s 58.
117 (22 March 2011) 671 NZPD 17509 (Marine and Coastal Area (Takutai Moana) Bill – Committee of the whole House, Hone Harawira).
118 Annette Sykes and Coral Panoho-Navaja “Takutai Moana” (presented to Te Hunga Rōia Māori o Aotearoa
Hui-ā-Tau, 25 August 2023).
Justice Powell suggested that the provision suppresses tikanga Māori both in process and in outcome.119
Process wise, s 58 is not capable of recognising every way in which the foreshore and seabed may be used in accordance with tikanga Māori. The section does not recognise spiritual or cultural uses, despite some powerful exercises of mana moana falling into that category, such as the placing of rāhui. The use must manifest into a physical exercise. Te Arawhiti lists some examples of physical uses as being the launching of waka, collecting of sand and hāngi stones, and aquacultural and fishing activities.120 However these physical uses are still “transient” in nature, and therefore not capable of being exercised constantly for 183 years while also being in accordance with tikanga.121 This is because in a practical sense, if one is observing kaitiakitanga and other tikanga values, they are unlikely to collect resources and kaimoana from the same place every time so as to preserve it. This is also because the relationship is different with Tangaroa than it is with Papatūānuku, states Annette Sykes, as you are also interacting with Tāwhirimātea and Marama, and so it is not possible to limit uses to the same select area every time.122 What this means practically is that sand, stones and kaimoana beds will move with the tides and the currents, in contrast with horticultural activities on land, which may easily remain in a single, defined area. Therefore, with both elements of the s 58 test, tikanga is not actually being recognised.
In relation to the outcome, the requirement for exclusivity is also inconsistent with tikanga Māori. Tikanga is not familiar with the drawing of set, exclusive boundaries, and forcing it to do so could potentially result in groups with overlapping interests having their interests ignored. Although in Re Edwards (Te Whakatōhea No 2), the Court successfully read down the requirement of exclusivity in light of what tikanga prescribed to make it more practicable for multiple claims to be recognised under s 58,123 this does not completely remedy the inherent shortcomings of the provision. Furthermore, the rights recognised in Re Edwards are being appealed by those opposing them including the Landowners Coalition, as are all other
119 Grant Powell “The MACA Act 2011 and Tikanga: Some Challenges Arising” (2023) 4 Amicus Curiae 623 at 625.
120 Office of Treaty Settlements Marine and Coastal Area (Takutai Moana) Act 2011: Information paper for local government (2011).
121 Grant Powell, above n 119, at 626.
122 Annette Sykes and Coral Panoho-Navaja, above n 118.
123 Re Edwards (Te Whakatohea (No 2)) [2021] NZHC 1025.
successful applications, and orders may not be made awarding CMT until the appeals process is complete.124 Annette Sykes also considers that in this way the legislative process is designed against recognising rights held in accordance with tikanga.125
The additional qualifications that tikanga is subjected to in s 58 mean that it is being recognised only insofar as is necessary to extinguish its operation and effect. Although the provisions do make tikanga a legal standard in the test, it then subjects tikanga to extra requirements which, more often than not, will end up nullifying the recognition of those rights held in accordance with tikanga. And despite best attempts at judicial innovation in the Māori Land Court, as in Re Edwards, recognition of CMT is inherently restricted under the MACA Act, because the legislation is designed against recognising rights, and consequently it is designed against recognising tikanga Māori. The Waitangi Tribunal found that the MACA Act regrettably “appears to reprise many of its predecessor’s more egregious features”.126 In this way, law relating to the foreshore and seabed can be said to still engage Swenson’s “repression” strategy.
Section 7(a) of the Resource Management 1991 (RMA) provides that all persons exercising powers under the Act shall “have particular regard” to kaitiakitanga.127 Section 2 of the Act defines kaitiakitanga as the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources.128 Section 7(a) is reflective of the strategy of subsidisation. As noted earlier in the chapter, the subsidisation strategy is where “the state system receives assistance to increase its capacity, performance and appeal relative to the non-state system”.129
The approach for drafting and amending Part 2 of the RMA could be described as that of taking “the path of least resistance”. It was designed to satisfy as many different stakeholders as
124 Marine and Coastal Area (Takutai Moana) Act 2011, s 113 – “a recognition order must be sealed... not before the expiry of the appeal period or the disposal of any appeal.”
125 Annette Sykes and Coral Panoho-Navaja, above n 118.
126 Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 1 Report (Wai 2660, 2020) at x.
127 Resource Management Act 1991, s 7.
128 Resource Management Act 1991, s 2.
129 Geoffrey Swenson, above n 8, at 448.
possible, including iwi Māori, and was proposed by a Labour-led government and subsequently reworked by a National-led government. Ian Williams describes it as “a series of compromises” where “all interests are represented... but nothing is really decided”.130 This is reflective of the state system including tikanga Māori to appeal to Māori and garner approval for the state law.131
Swenson described an absence of constructive engagement as a characteristic of the subsidisation strategy, and stated that exercises of subsidisation may take the form of symbolic representation.132 All that s 7 requires is that decisionmakers “have particular regard” to kaitiakitanga, not that they actually give effect to it. Selwyn Hayes also stated that the structuring of ss 5, 6 and 7 of the RMA makes kaitiakitanga a subordinate concept to the legislative purpose of “sustainable management”.133 Kaitiakitanga is of no binding effect in any given resource management dispute. Given this, its inclusion in s 7 appears more symbolic than legal. Therefore, this further shows that s 7 of the RMA is reflective of the “subsidisation” strategy.
Despite kaitiakitanga not being a mandatory consideration or binding in any resource management decision, its inclusion in s 7(a) still allows the state to increase its capacity and performance. This is because state actors can still draw on it, and kaitiakitanga, and tikanga at large, differs from state law in that it considers the environment as intrinsically valuable and a forefront consideration in every decision. This differs from the state law perspective which historically has tended to only consider the environment as extrinsically valuable, to the extent that it serves people.134 Many scholars consider the tikanga perspective has many valuable contributions to make to the way we interact with the natural environment,135 and we are seeing recognition of this come through in other areas of state law such as the Te Awa Tupua Act
130 Ian Williams “The Resource Management Act 1991: Well Meant But Hardly Done” [2000] OtaLawRw 6; (2000) 9 Otago LR 673 at 676.
131 Arnu Turvey “Te Ao Māori in a “Sympathetic” Legal Regime: the Use of Māori Concepts in Legislation” (2009) 40 VUWLR 531 at 531.
132 Geoffrey Swenson, above n 8, at 448.
133 Selwyn Hayes “Defining Kaitiakitanga and the Resource Management Act 1991” (1998) 8 Auckland U L Review 893 at 894-895.
134 The popular framework of “ecosystem services” reflects this perspective, it categorises the direct and indirect contributions provided to humans by ecosystems and prioritises them accordingly.
135 Tara McAllister, Daniel Hikuroa and Cate Macinnis-Ng “Connecting Science to Indigenous Knowledge:
kaitiakitanga, conservation, and resource management” (2023) 47 New Zealand Journal of Ecology 1.
2017.136 Therefore, s 7(a) could assist state law decisionmakers to take more things into account than would otherwise be possible and again is reflective of subsidisation.
Section 4(4) of the District Courts Act 1947 provides that “a Judge may hold or direct the holding of a particular sitting of a court at any place he deems convenient.”137 Using the broad discretion this section gives, now-Chief Judge of the District Court Heemi Taumaunu held a sitting of the Youth Court at Te Poho-o-Rāwiri Marae in Gisborne on 30 May 2008. This was the beginning of what are now known as the Rangatahi Courts. The way these courts operate are reflective of Swenson’s “incorporation” strategy, because incorporation involves the state and nonstate justice processes combining, and was specifically stated to include the creation of customary courts with state support and regulation.138
The model was developed jointly by members of the judiciary and prominent iwi and hapū leaders. The Rangatahi Courts are a response to the 1986 “Pūao-te-atatu” report, and go hand in hand with another innovation – the Family Group Conference.139 Both processes attempt to follow the Māori practice of having all family members involved in matters concerning young persons and create opportunities for restorative justice. Judge Taumaunu stated:140
For the first time, a New Zealand court exercising criminal jurisdiction, applied the same law in an orthodox manner, but also incorporated te reo Māori and tikanga Māori, held the sitting of the court at a marae, and observed marae kawa, as part of the ceremony and processes of the court.
136 Adopting the tikanga Māori perspective that landmarks, such as rivers and mountains, are ancestors extends the concept of legal personhood and provides a new way for protecting the environment, as the awa can now vindicate its own rights (via those charged with representing it) against those who wrongly interfere and may bring actions in tort to do so.
137 District Courts Act 1947, s 4(4).
138 Geoffrey Swenson, above n 8, at 447.
139 The Maori Perspective Advisory Committee Puao-te-atatu (Department of Social Welfare, September 1988). 140 Heemi Taumaunu “Rangatahi Courts of Aotearoa New Zealand – an update” ( November 2014) Māori LR 1 (emphasis added).
Although open to all youth offenders, the objective of these sittings is to connect young Māori offenders with their whakapapa, their culture and their whānau, hapū and iwi to reduce the chances of reoffending and “break the cycle”.141
It commences with a pōwhiri, where all those involved in the sitting, including the Judge, court staff, police, victim and offender and their respective families, are welcomed onto the marae where the court is to sit. This involves karakia, whaikōrero, waiata, harirū and kaputī.142 The young person appearing in the court must learn and recite a mihi to engage in whakawhanaungatanga. There are also kaumatua and kuia present, and although they do not play a legal role, they are able to speak to the young person during their hearing, teach them about their whakapapa and connections to the marae and the people around them, and give them personal advice.
However, “it is no soft option”.143 Offenders may elect to be processed through the Rangatahi Courts only once they have admitted their offending and completed a Family Group Conference (FGC), and the FGC has recommended monitoring by the Rangatahi Court.144 The Rangatahi Court sittings are always preceded by an appearance at a conventional Youth Court. The law governing the Rangatahi Court is identical to that governing the Youth Court (primarily the Oranga Tamariki Act 1989), all the same parties remain involved, including prosecutors, the Police and Oranga Tamariki, and the normal principles of natural justice apply, with added cultural expectations.145 FGC Plans are designed to hold the young person accountable, provide for the interest of the victim/s, and deal with the need and underlying causes of the young person’s offending.146
The creation of the Rangatahi Courts as an institution which incorporates tikanga into its processes has occurred despite there being no mention of tikanga Māori in the District Courts Act. The Judiciary have elected to use the discretion left open to them in s 4(4), and the ability
141 Waitangi Tribunal Tū Mai te Rangi!, above n 59; The Youth Court of New Zealand “The Rangatahi Courts Newsletter Special Edition – The Rangatahi Courts’ Hui” (newsletter, 3 July 2013).
142 In order: reciting of a prayer/blessing, formal speeches, songs, shaking hands or sharing hongi and sharing food.
143 John Walker “Taking lessons from the Rangatahi Courts” (2018) 3 LawNews 1.
144 Oranga Tamariki Act 1989, ss 247-271.
145 John Walker, above n 143.
146 Oranga Tamariki Act 1989, s 208.
to act consistently with tikanga where legislation does not prescribe otherwise, to incorporate tikanga as part of the standard practice of the court.147 Therefore, the Rangatahi Courts display Swenson’s dynamic of incorporation. The Rangatahi Courts operate in a tikanga Māori setting and observe a series of tikanga Māori processes, but are still governed by state law and considered to be another Youth Court. Unlike the following example, the Youth Court and Rangatahi Court forums do not operate parallel to one another.
The final example I will describe and analyse, is the provisions in the Pae Ora (Healthy Futures) Act 2022 which provide for the creation and operation of the Māori Health Authority (Te Aka Whai Ora).148 Te Aka Whai Ora is a product of state law but nonetheless is established to operate independently of the state in some important ways, as I describe in this section. Bridging was described by Swenson as being evident where cases are allocated between the state and non-state justice systems, based on state law, preferences, and appropriateness.149 As discussed in the previous chapter, this strategy may be seen where there are forums where decision-making authority is exercised by the non-state legal system. There is evidence of the bridging strategy at work in the way that Te Aka Whai Ora has been designed, because it has been allocated control over certain decisions.
Section 19 provides that Te Aka Whai Ora will jointly develop and implement a New Zealand Health plan alongside Health New Zealand, the general Crown entity for health created by s
11.150 Section 32 of the Act provides that the entities must work to resolve disputes between them, and if they are unable to reach agreement, the matter will be referred to the Minister for Health, who must consult with the Minister for Māori Development or the Minister for Māori- Crown Relations in determining the dispute.151 In this way Te Aka Whai Ora is not subordinate, but equal to Health New Zealand. This shows that there are two equal bodies, each of which has decision-making authority over specific issues.
147 Third category of legislative recognition described by Glazebrook J at [98] of Ellis v R, above n 1.
148 Pae Ora (Healthy Futures) Act 2022.
149 Geoffrey Swenson, above n 8, at 446.
150 Pae Ora (Healthy Futures) Act 2022, ss 19 and 11.
151 Pae Ora (Healthy Futures) Act 2022, s 32.
Te Aka Whai Ora has the power to decide what measures are necessary to achieve the objectives set out at ss 3 and 18 of the Act, which may be briefly summarised as achieving health equity for Māori. Section 22 requires that board members of Te Aka Whai Ora must be competent in tikanga and mātauranga Māori.152 Although there are no explicit statutory directives for the use of tikanga Māori in the decision-making processes of Te Aka Whai Ora, the above provisions will provide for its use in the course of operation. This shows that Te Aka Whai Ora will be a forum within which tikanga Māori will be used in decision-making, and therefore it may be characterised as a non-state legal forum.
Section 20 provides that Te Aka Whai Ora must engage with and report to Māori in relation to their needs for hauora Māori.153 This is to be done by working with the iwi-Māori Partnership Boards recognised under s 31 of the Act, but also Māori health organisations, rūnanga and Māori trust boards, and other representatives of whanau and hapū.154 This shows the preferences of Māori for how they are dealt with by the health system are reflected in the operation of Te Aka Whai Ora.
The creation of this authority gives effect to the recommendations of the Waitangi Tribunal in the Hauora stage one report.155 In the Hauora report it was found that Māori continue to experience the worst health outcomes of any population group in Aotearoa/New Zealand, and that the Crown are failing Māori by not allowing them to have adequate decision-making authority and influence when it comes to the design and delivery of primary health care services.156 Therefore, this shows that Te Aka Whai Ora has been created and allocated decision-making powers because it has been deemed appropriate by state law officials.
Although Te Aka Whai Ora has been created by state law at s 17 of the Pae Ora Act,157 there is evidence to show that tikanga Māori operates authoritatively and uninterrupted within that decision-making space. The recently published progress report undertaken by the Hauora Māori Advisory Committee found that the board has a “passion and urgency” to “inject deep
152 Section 22.
153 Section 20.
154 Section 31.
155 Waitangi Tribunal Hauora: Report on Stage One of the Health Services and outcomes Kaupapa Inquiry (Wai 2575, 2019).
156 Hauora, above n 155.
157 Pae Ora (Healthy Futures) Act 2022, s 17.
transformative thinking and te ao Māori approaches into the Te Aka Whai Ora strategic and operational functions”.158 Therefore, it can be shown that all characteristics of the “bridging” strategy are evident in Te Aka Whai Ora.
CONCLUSION
This chapter has shown that Geoffrey Swenson’s model of legal pluralism can be applied to the interactions between tikanga Māori and state law in Aotearoa/New Zealand, despite the model being developed in a different context. As illustrated, there exists a wide range of ways in which tikanga Māori and state law may interact with one another, and each of these ways resembles a different one of Swenson’s strategies. This has been a useful exercise because it allows us to observe the type of legal pluralism we ought to be pursuing in practice. The next chapter will continue to explore which strategies will give effect to a “strong form of weak” legal pluralism, and will help us proactively shift the archetype towards coactive and strong legal pluralism.
158 High-level assessment of Te Aka Whai Ora progress against cabinet expectations, commitments and priorities for the Hauora Māori Advisory Committee (Ministry of Health, May 2023) at 5.
IV PROVIDING FOR LEGAL PLURALISM IN AOTEAROA/NEW ZEALAND LEGISLATION GOING FORWARD
This chapter expands upon the novel “coactive” archetype briefly proposed in the previous chapter. It outlines the key features of the coactive archetype, how it relates to the ultimate goal of constitutional transformation and also how it relates to the rest of Swenson’s existing model. It then also assesses which of the strategies analysed in the previous chapter has the greatest ability to facilitate a shift towards coactive legal pluralism. Finally, it will explore ways in which this strategy – found to be bridging – may be given effect to on a wider basis.
As stated in the previous chapter, I consider it necessary to develop a fifth archetype for Swenson’s model, as none of the existing four are capable of realising a strong form of weak legal pluralism, let alone a strong legal pluralism relationship. This is because they all contain what Lauren Benton calls “a sense of inevitability about the dominance of state law”.159 Thus I have tried to develop one that amounts to strong legal pluralism that we might aspire to shift into. What this fifth archetype of “coactive” legal pluralism looks like must be explored in more detail.
Swenson states that the archetypes are supposed to help conceptualise the core features of the relationship between the state and non-state legal systems.160 One of the core features of the coactive archetype is that there is equality of status between the state and non-state laws – they would both be considered law and of legal effect. Non-state institutions would have the power to both make laws and apply them.161 Equality of status would require a symmetrical reconciliation between the two legal systems, so that non-state law may relate to the state law
159 Lauren Benton Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge University Press, Cambridge, 2002) at 9.
160 Geoffrey Swenson, above n 8, at 443.
161 Jennifer Corrin “Exploring the Deep: Looking for Deep Legal Pluralism in the South Pacific” (2017) 48 VUWLR 305 at 309.
without there being an assumption of inferiority on the part of the non-state law.162 Each system would provide the other with the space to operate autonomously without compromising the other’s integrity. They would respect one another’s right to exist, and respect the inseverable ties that each has to the history, politics and social harmony of the society concerned. Where engagement or collaboration is required between them, the systems would engage with one another constructively, and with that respect at the forefront of the interactions.
Beyond these core characteristics, the coactive archetype is fluid. It may be realised through a variety of different practical arrangements. Determining which particular arrangements would be best suited to Aotearoa/New Zealand is a huge undertaking, and is beyond the scope of this dissertation. However, to help explain what it might look like, I have identified a potential manifestation of the coactive archetype in Samoa. Through the examples he makes, Swenson shows that to deduce the archetype active in a society, we must observe a general trend about the ways state and non-state relate to one another across a range of laws and institutions.163 Three statutes in Samoan display some traits of coactive legal pluralism, and because these statutes are so important and pervasive we might suggest that coactive legal pluralism is dominant across Samoan law generally.
First, the Samoan Constitution states in the Preamble that Samoa is to be an Independent State based on both Christian principles and Samoan custom and tradition.164 Article 2 states that the Constitution is the Supreme Law of Samoa.165 This indicates that both European law (that has its ultimate roots in Christianity) and Samoan customary law have equal status, and because the Constitution is Supreme Law, Samoan customary law is “to be considered as an essential element of a polity” and cannot be overlooked.166 Secondly, the Village Fono Act 1990 provides for local government to be carried out by traditional village fono (councils), who operate in accordance with the local custom.167 Village fono have the authority to resolve minor
162 Val Napoleon, above n 10.
163 Geoffrey Swenson, above n 8, at 443-445 - shown in his explanations of combative, cooperative and complementary legal pluralism.
164 Constitution of the Independent State of Samoa 1960, Preamble.
165 Constitution of the Independent State of Samoa 1960, art 2.
166 Vito Breda “Samoa: Constitutional Governance and Customary Law” (2019) 23 Revue juridique polyne’sienne 163 at 167.
167 Village Fono Act 1990, s 2.
disputes in a customary way, and are connected to central government through their mayors.168 Jennifer Corrin considers that village fono display “deep”169 legal pluralism because “the village fono does not rely on the state for its authority either to make laws or to adjudicate them”.170 Finally, created by the Land and Titles Act 1981, the Land and Titles Court of Samoa has exclusive jurisdiction over matters relating to Matai171 titles and customary land, and is to determine such matters in accordance with Samoan custom.172 The Court has superior status and its own Appellate Division, and because of the rule against alienation of customary land173 meaning that around 80 per cent of Samoa’s land is owned in custom, is a very important institution.174
These three important pieces of law, when their effect is considered cumulatively, result in the predominant archetype in Samoa likely being coactive. This is because they show Samoan custom operating authoritatively and on an equal plane to the European derived law. There are many powerful institutions operating in accordance with custom. There is meaningful engagement occurring between the two laws, shown in the Constitution and in the way local and central government interact with one another.
Samoa has been described as having a “tendency to crystallise customary prescriptions into statutory measures”.175 This might be problematic from a strong legal pluralism perspective since legislation is a traditionally European legal measure. However, this does not prevent coactive legal pluralism from being active. This is because the reason for having law be written in statute can sometimes be independent of its origins, and simply be practical in the circumstances. The Samoan legal system may be considered “a manifestation of both the colonisation and decolonisation processes”, and in this way it has become a very complex system intertwining two rather different legal systems, which has then created a clear need for
168 Jennifer Corrin “Resolving land disputes in Samoa” in Theo Levantis and others (eds) “Making land work” (AusAID, 2008) 199 at 215.
169 This is another way of saying strong legal pluralism.
170 Jennifer Corrin, above n 161, at 321.
171 Chief.
172 Land and Titles Act 1981, ss 34 and 37.
173 Alienation of Customary Lands Act 1965.
174 J Timothy O’Meara "From Corporate to Individual Land Tenure in Western Samoa" in Gerard Ward and Elizabeth Kingdon (eds), Land, Custom, and Practice in the South Pacific (Cambridge University Press, Cambridge, 1996) 109 at 115.
175 Vito Breda, above n 166, at 168.
clear written regulation.176 The statutory material merely identifies the structures of power and decision-making, but does not prescribe decision-making criteria or processes, so those processes may be entirely governed by custom.
However, there may also be some areas of Samoan law where the coactive archetype is not necessarily active. Swenson acknowledges that archetypes are overly simplistic and that there is likely to be variability between different areas of law, but asserts that there is still value in generalising the relationship between state and non-state law.177
Matike Mai is the Independent Working Group on Constitutional Transformation. Their report featured multiple different models of what constitutional transformation might look like in Aotearoa/New Zealand, for the purpose of sparking discussion and imagination. One of these is the “spheres of influence” model that has “discrete rangatiratanga and kāwanatanga spheres of influence along with a relational site of joint decision-making”.178 I developed the coactive legal pluralism archetype with close reference to this model.
The coactive archetype involves two legal systems relating to one another as equals. This is a key for achieving constitutional transformation, because it is what was provided for by Te Tiriti. Each system would have authority as law in different areas, as in the discrete spheres. Where both systems are concerned, they would collaborate meaningfully, as in the relational site of joint decision-making. Their relationship would be based in their shared histories and shared understandings.
Coactive legal pluralism would amount to a form of “strong legal pluralism” because state law would not be central, both legal systems would operate on an equal plane. As stated in Chapter 2, Aotearoa/New Zealand is not capable of achieving strong legal pluralism without first
176 Vito Breda, above n 166, at 168.
177 Geoffrey Swenson, above n 8, at 443.
178 The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation
(Iwi Chairs’ Forum, February 2016) at 99.
undergoing constitutional transformation, so therefore, coactive legal pluralism will only be present where there has first been constitutional transformation.
As stated in the previous chapter, Aotearoa/New Zealand currently displays traits of competitive and cooperative legal pluralism. To determine how we might shift towards coactive legal pluralism, we need to understand how the archetypes are related to one another. The four archetypes set out by Swenson - combative, competitive, cooperative and complementary – are listed in order from least to most constructive.179 It is possible for an archetype to shift into one of the archetypes neighbouring it in the spectrum. Swenson showed this in his paper, where both Timor-Lester and Afghanistan began in the competitive archetype, but Timor-Leste shifted forwards along the spectrum to complementary and Afghanistan shifted back along the spectrum to combative.180 However it does not appear possible to jump across archetypes, i.e. from combative to complementary. It is progressive, which is why I have chosen to display it as a flow chart:
As stated previously, all of those archetypes have been constructed from within the state law purview and therefore differ in a significant way from the coactive archetype. All of Swenson’s existing archetypes amount to forms of weak legal pluralism, whereas the coactive archetype amounts to strong legal pluralism. Therefore, it is my conception that rather than fitting into the spectrum, the coactive archetype would relate to the others by creating more of a tree diagram. The coactive archetype could be shifted into from the competitive archetype, but as an alternative to the cooperative archetype, not as a precursor to it. In other words, on one branch of the tree diagram a legal pluralism relationship may shift from competitive to cooperative and then complementary. The other branch on the tree diagram would be a shift from the competitive to the coactive archetype. See below for a visualisation of my imagined progression through the archetypes:
179 Geoffrey Swenson, above n 8, at 448.
180 Geoffrey Swenson, above n 8, at 450.
This diagram shows all possible movements between the archetypes. It is not possible to move into the coactive archetype at any other point than from the competitive archetype. This is because when a country is in the combative archetype there is no constructive engagement, which is essential to engaging in the coactive archetype, and when a country is in the cooperative and complementary archetypes, the non-state law has been subjugated by the state so that it may not be treated equally by the state law.
Whether a country will progress or regress through the flow chart will depend on the strategies employed. As this dissertation considers the coactive route to be desirable, the next step is to find which strategy or strategies would facilitate a move in that direction.
Particular strategies must be consciously engaged at each point of interaction between state law and tikanga Māori, as it is these individual strategies that are capable of facilitating an overall shift in the relationship dynamic.181 However, not all of the strategies will be capable of facilitating the shift in the desired direction. Rather, some will have an opposite effect.
While the previous chapter examined each strategy and how they operate in Aotearoa/New Zealand on a more descriptive level, this section undertakes a normative assessment of which strategy is capable of helping us shift towards coactive (strong) legal pluralism and will in itself amount to a display of a “strong form of weak legal pluralism” on the continuum of legal pluralism.182
181 Geoffrey Swenson, above n 8, at 442.
182 Anne Griffiths, above n 33.
The repression strategy would clearly not be capable of facilitating a shift towards coactive legal pluralism. It goes beyond treating non-state law as inferior – it represses it and denies its existence. This is completely incompatible with an archetype which envisions equality of status between state and non-state law. Swenson states that repression can be used to remove the non- state system from view,183 but also that state legal actors need to have an informed strategy which recognises the importance of the non-state legal authority.184 This juxtaposition suggests that Swenson himself does not advise the engagement of the repression strategy if any successful state-building is hoped for. Although Swenson is referring to state-building in post- conflict situations, we identified in Chapter 2 that Aotearoa/New Zealand is also on a state- building journey of our own through postcolonialism,185 and therefore repression will not be helpful for progressing on that journey.
The “subsidisation” strategy involves using aspects of the non-state legal system to reinforce the state law. In Aotearoa/New Zealand, one way this has manifested is in extracting singular elements of tikanga Māori and inserting them directly into legislative provisions, as shown in s 7(a) of the RMA.186 This strategy also does not appear as though it would allow for the emergence of coactive legal pluralism, for multiple reasons.
Firstly, because it goes against the nature of tikanga to separate elements from the rest of the system. Tikanga should be considered holistically and in all its context and applied flexibly to unique sets of facts. This is of issue because “Māori concepts when treated in isolation are incapable of proper function and development”,187 as was also stated by the mātanga in the Ellis Statement of Tikanga.188 In s 7(a) of the RMA, kaitiakitanga as a tikanga principle ends up subverted and not able to operate authoritatively and autonomously. Further, Selwyn Hayes
183 Geoffrey Swenson, above n 8, at 448.
184 Geoffrey Swenson, above n 8, at 457.
185 Discussed above at page 22.
186 Resource Management Act 1991, s 7(a).
187 M Hemi “Tinorangatiratanga: Assessing the Resource Management Act” (Masters Thesis, Lincoln University, 1991) cited in Natalie Coates, above n 34.
188 Statement of Tikanga in Ellis v R, above n 1.
considers that the terms “stewardship” and “guardianship” cloaks “the concept of kaitiakitanga in Pakeha [sic] terms of lesser importance and entirely different origins”.189 This does not recognise the equality of status of both the state law and non-state law as the coactive archetype requires.
Secondly, because the engagement between the systems is merely surface level. Swenson stated that a “successful, sustainable strategy must be rooted in a deep understanding of how a country’s culture, politics and history can help underpin a legitimate legal order”.190 Subsidisation appears to recognise the value that the non-state system offers, because the state law wishes to use aspects of the non-state law to increase its capacity and appeal. However, it does not engage on the deep level that Swenson describes.
The “incorporation” strategy involves bringing aspects of non-state law into the state law so that they are one and the same. Using the incorporation strategy creates a sense of nominal equality, and therefore it can appear appealing on first glance. However, Swenson states that the engagement of incorporation will not be suitable where two characteristics are present: firstly, where the state law and non-state law differ significantly and secondly where there are no truly effective accountability mechanisms.191
Tikanga Māori and Aotearoa/New Zealand state law differ significantly to one another. Tikanga Māori “will always contextualise disputed issues within the framework of fundamental values rather than merely announce the application of a rule”.192 This may be contrasted with the black letter, glacially changing nature of the common law. Compound this with the reality that judges tasked with interpreting the law often lack the understanding of te reo Māori or tikanga Māori necessary to navigate them respectfully, and the potential consequence is that tikanga loses its integrity and becomes severely distorted.193
189 Selwyn Hayes, above n 133, at 898.
190 Geoffrey Swenson, above n 8, at 457.
191 Geoffrey Swenson, above n 8, at 447.
192 Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 3.
193 Ani Mikaere and Moana Jackson have warned of this; Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at 3.
With the Rangatahi Courts specifically, because the process is entirely discretionary, there are no accountability mechanisms available to ensure tikanga is appropriately observed and retains its integrity while it is being used. Matiu Dickson was very wary about marae, an incredibly important place of sharing and healing for Māori,194 long considered to be the last bastion of te reo Māori and tikanga Māori, being co-opted into a medium of state violence.195 One of the main appeals of the Rangatahi Court is its relational focus, as opposed to transactional.196 This is achieved through a reliance on whanaungatanga in the court processes, shown in the mihi process and the presence of kaumātua. However, Dickson was particularly concerned that central elements of tikanga, namely whakapapa, were not being observed, as many judges were using authority on marae from which their mana had not emanated. This is despite the fact that it is through whakapapa connection that all rights and responsibilities in tikanga Māori are derived.197 Where there is no whakapapa responsibility, nor any minimum legislative standard binding upon the judges operating on the marae, there are no effective accountability measures. Judges who engage in the Rangatahi Court process may well intend to engage with tikanga in positive and meaningful way. However, this does not excuse the lack of checks and balances, because ultimately, they are using tikanga Māori to inflict state violence.
Relating to both issues, Annette Sykes has stated unequivocally that “if tikanga is to be truly incorporated in any way in the Pākehā legal structures of this nation, we [Māori] need the power and respect to define how that it to occur”.198 Because incorporation does not allow for this, nor any accountability, it is more likely to take us down the route towards complementary legal pluralism rather than to coactive.
The “bridging” strategy involves the creation of a forum within which non-state law operates authoritatively. Cases are allocated between that forum and the state law forum as appropriate,
194 Nin Tomas “Māori Justice: The Marae as a Forum for Justice” in Amanda McCaslin (ed) Justice as Healing: Indigenous Ways (Living Justice Press, Minnesota, 2005) at 134.
195 Matiu Dickson “The Rangatahi Court” (2011) 19 Waikato Law Review 86 at 91.
196 Mel Jessep “Stuff the transactional shit: Learning through the lived experience of the Rangatahi Court” (Masters of Criminal Justice Thesis, University of Canterbury, 2022) at 81.
197 Matiu Dickson, above n 195, at 91.
198 Annette Sykes, above n 60, at 9.
based on state law and preference. In this way, tikanga is able to operate autonomously and the principles are able to be applied holistically and dynamically, by actors who are appropriately qualified to do so. The state law meaningfully recognises tikanga as law.
However, Swenson says it is for state law to determine how cases are allocated between the two streams. On its face this could indicate a level of superiority of the state law over the non- state law. Further, the creation of the non-state forums are empowered through state law, and Norse and Woodman found that those situations fall short of deep legal pluralism, as “acknowledgement does not occur when state law establishes an institution, even one which resembles a former customary law institution”.199 Therefore, bridging in legislation cannot be considered an exhibition of strong legal pluralism in itself. However, this is reflective of the colonial reality in Aotearoa/New Zealand, where it is the Crown that currently holds the sovereign law-making power. Although it may be on a questionable basis,200 it exists as a matter of fact and is not likely to disappear in the near future.
Nevertheless, the strategy itself not amounting to a display of strong legal pluralism does not preclude it from facilitating an overall shift in the archetype towards coactive legal pluralism. Despite being a product of state legislation, Te Aka Whai Ora is now an autonomous entity that exercises decision-making power based on tikanga Māori. Again, this is evidenced by the “passion and urgency” for te ao Māori exhibited by the Board and observed by the Advisory Committee in their report.201
The legislation also only provides that Board members must be fluent in te reo and tikanga and mātauranga Māori; it does not prescribe their use in any particular way. This creates a board equipped with the necessary skills, and empowers them to make decisions using that skillset, which allows tikanga to operate with integrity. This is sometimes to such a degree that it delays progress due to disagreements between Te Aka Whai Ora and Health New Zealand.202 For my
199 Bradford W Morse and Gordon R Woodman "Introductory Essay: The State's Options" in Bradford W Morse and Gordon R Woodman (eds) Indigenous Law and the State (Foris, Dordrecht, 1988) 5 at 10–11.
200 Clare Charters, above n 6, at 612 – state law was “clearly illegitimate in its initial and historical claim to authority”.
201 Hauora Māori Advisory Committee, above n 158, at 5.
202 Hauora Māori Advisory Committee, above n 158, at 5.
purposes this is a strength rather than an impediment: it is indicative of equal footing between the agencies and the dedication of the Te Aka Whai Ora board to following tikanga Māori.
Further, as more spaces are provided for tikanga to operate freely, adapt and respond to novel situations, and as Māori capacities and capabilities are increased, we will see tikanga return to its full strength. Moana Jackson has referred to tikanga having a need to “rebuild” its practical processes and capacity after so much damage was done to it and those efforts to rebuild “constantly being hamstrung” thus far.203 Forums like Te Aka Whai Ora provide a space free from such hamstringing attempts. As this forum matures and develops, we will be able to expand our imaginative horizons as to what constitutional transformation might look like on a practical level in Aotearoa/New Zealand.
Therefore, this shows that bridging, despite being a weak exercise of pluralism in itself, is the most effective strategy for progressing Aotearoa/New Zealand towards the archetype of “coactive” legal pluralism and acting as a seedbed for future constitutional transformation. It is currently underutilised, and may be actively engaged in more areas, and perhaps even on a broader scale.
As explored thus far, Te Aka Whai Ora is a display of the bridging strategy being used in Aotearoa/New Zealand. It is a forum within which tikanga Māori is able to operate authoritatively, so it may be considered a non-state legal venue under Swenson’s description.204 Although it is still in its infancy, Te Aka Whai Ora appears capable of making long overdue improvements to the way health policy address Māori disparities. Health is one of the multiple areas in which Māori suffer from poorer outcomes relative to other demographics in Aotearoa/New Zealand.205 Education is another.206
203 Expert testimony in R v Mason [2012] NZHC 1361; [2012] 2 NZLR 695 at [48].
204 Geoffrey Swenson, above n 8, at 446.
205 Ian Powell “Māori child health inequities research reinforces case for a Māori Health Authority” New Zealand Doctor (online ed, New Zealand, 13 February 2023); Hauora, above n 155.
206 Jacek Krzyzosiak and Georgina Stewart stated “there are significant disparities in the educational achievement of the Māori student population, which been in plrace for as long as national assessment data have been recorded” in their article “Can culturally responsive policies improve Māori achievement?” (2019) 15 Curriculum Matters 42 at 42.
The current recognition of tikanga in education legislation is minimal, Section 6 of the Education and Training Act 2020 allows for the creation of joint statements setting expectations upon agencies to provide equitable outcomes for students following consultation processes with Māori. Section 9 states that the Crown has a responsibility to give effect to the principles of the Treaty of Waitangi.207 This is not producing the results that are needed, and the Māori education coalition Te Matakahuki state that the government is simply not capable of producing them.208 This statement is supported by the government imposed “National Standards”, which actually resulted in a drop in literacy and numeracy among the target age group at kura kaupapa instead of an increase, being scrapped.209
In an attempt to address the government’s inaction, claims have been lodged with the Waitangi Tribunal (WAI1718 and WAI3072) which state respectively that tamariki and rangatahi Māori have been failed by mainstream schools. The claims state that kaupapa Māori education providers should be resourced equitably and granted autonomy so they can deliver the outcomes they are proven to be more capable of in Māori kura than at mainstream schools. The claims also highlighted the need for an independent authority for Māori education to be established. This corresponds with the findings of Tomorrow’s Schools Independent Taskforce 2019 report, Our Schooling Futures.210 Responding to the claims, Associate Minister for Māori Education Kelvin Davis commissioned a review panel, Te Pae Roa, but at the outset ruled out the possibility of an independent authority.211 The second report of Te Pae Roa, released earlier this year, nevertheless recommended progress be made towards the creation of such an entity.
207 Education and Training Act 2020, ss 6 and 9.
208 Te Kuru o te Marama Dewes “The ongoing fight for Māori to school our own, our way” The Spinoff (online ed, New Zealand, 21 April 2022); Samantha Worthington “Work on Māori education review continues without key groups” 1News (online ed, New Zealand, 10 February 2022).
209 Kirsten Warner “Teachers celebrate the end of National Standards” The Spinoff (online ed, New Zealand, 15 January 2018).
210 Tomorrow’s Schools Independent Taskforce Our Schooling Futures: Stronger Together (Ministry of Education, November 2018).
211 Te Pae Roa The Future of Kaupapa Māori and Māori medium education (Ministry of Education, April
2022).
Creating an independent authority for Māori education would be an exercise of the bridging strategy, in the same ways as with the Māori Health Authority. The creation of such an entity is supported by many reports and studies. There is evidence from the Education Review Office that tamariki Māori excel in Māori medium education where they are immersed in their culture.212 There is also an established correlation between children receiving higher education being less likely to enter the youth justice to criminal justice pipeline.213 With the preliminary findings of Te Aka Whai Ora promising success, perhaps the government will gain the courage to heed the call and establish independent authorities in more areas.
This also extends beyond education, to areas such as justice, where a model which would amount to a bridging strategy was advocated for by Moana Jackson 35 years ago in his report He Whaipaanga Hou.214 As exercises of the bridging strategy become more common, this may in turn create a need for a framework that can coordinate them, to ensure actual progress and less variable outcomes.
This section will briefly explore United Nations Declaration on the Rights of Indigenous Peoples Act 2021 (UNDA), a Canadian statute implementing the Declaration into law. The primary reason for doing this is to highlight such an Act’s potential ability to coordinate the development, progress, and execution of legislative measures across different policy areas. This is relevant to this dissertation because these measures may amount to exercises of the bridging strategy, and coordinating them will help us to shift the archetype towards coactive legal pluralism.
The Declaration is an international human rights document on the rights of Indigenous peoples which covers a broad range of rights and freedoms, signed by Aotearoa/New Zealand in 2010. A significant concept in the Declaration is Indigenous self-determination, which is “grounded
212 Education Review Office Te Kura Huanui: The treasures of successful pathways (Ministry of Education, June 2021).
213 William Flavell “Kia tū pakari ngā māhuri: Amplifying the voices of rangatahi Māori in the criminal justice system and their educational experiences” (Masters of Criminology and Criminal Justice Thesis, Auckland University of Technology, 2022).
214 Moana Jackson Māori and the Criminal Justice System: He Whaipaanga Hou - a New Perspective
(Department of Justice, Study Series 18 Part 1, 1988) at 39.
in the idea that all are equally entitled to control their own destinies”.215 Coactive legal pluralism is likely to involve institutions where the Indigenous legal system has decision- making power over issues that pertain to the Indigenous people (which is Indigenous self- determination in a nutshell). Further, the Declaration provides for equity between Indigenous and non-Indigenous peoples, and also recognises the particular rights of Indigenous peoples that relate to their unique identity.216 These are characteristics also envisioned for the coactive archetype. Therefore, the Declaration is a suitable means for working towards the coactive archetype.
UNDA legislates the development of an “action plan”, a framework for ensuring the Declaration is fully implemented into Canadian law.217 The first plan was published in July 2023, and includes a series of measures across different priority areas, including health, child protection, and criminal justice, among others.218 One of the measures was a commitment to co-developing Indigenous healthcare legislation, which has so far produced recommendations for the establishment of an independent entity.219 Another is the Act respecting First Nations, Inuit, and Metis children, youth and families, which affirms a right of self-government and jurisdiction in relation to child and family services and is designed to gradually transfer control over these services to Indigenous nations.220 These two legislative measures, when fully implemented, will each amount to exercises of bridging, because they will involve non-state law being provided a forum within which to determine cases “as appropriate based on state law, participants’ preferences and venue appropriateness”.221
The way in which the UNDA action plan coordinates these different reforms and initiatives under the action plan is potentially very useful for Aotearoa/New Zealand’s endeavour for greater constitutional legitimacy. It allows for measures in areas completely independent of
215 James Anaya Indigenous Peoples in International Law (2nd ed, Oxford University Press, Oxford, 2004) at 98, cited by Robert Joseph “Indigenous Peoples’ Good Governance, Human Rights and Self-Determination in the Second Decade of the New Millenium – A Māori Perspective” (paper presented to the United Nations Permanent Forum on Indigenous Issues, Thirteenth Session on Good Governance and Human Rights, New York, 12-23 May 2014).
216 United Nations Declaration on the Rights of Indigenous Peoples, art 2, 5, 8 and 9.
217 United Nations Declaration on the Rights of Indigenous Peoples Act 2021, s 4(b).
218 United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan 2023.
219 First Nations Health Council Engagement Report to inform the Development of Federal Indigenous Distinctions-Based Health Legislation (2022).
220 An Act respecting First Nations, Inuit and Métis children, youth and families (S.C. 2019).
221 Geoffrey Swenson, above n 8, at 446.
one another to be related to each other, and have their progress monitored and enforced. This will ensure that progress does continue to occur on all fronts, and decreases the variability between separate projects so then outcomes may be improved across the board, which will make it easier to shift the archetype in a concerted manner. It was stated in He Puapua, the report of the Working Group on a Plan to Realise the UN Declaration in Aotearoa/New Zealand:222
A Declaration plan is one way that the New Zealand government might start down the road to constitutional transformation, and it has the potential to be an effective method indeed.
The suitability of an Act like UNDA for Aotearoa/New Zealand would need to be interrogated further. Aotearoa/New Zealand has complexities that are unique to us and may result in such an Act applying differently to how it does in Canada. However, He Puapua stated that the Declaration is generally compatible with Aotearoa/New Zealand, and that “there is a clear need for the Crown to develop a holistic and coordinated approach to engagement with Māori on issues”.223 Many Māori legal scholars including Moana Jackson engaged in the drafting of the Declaration, and significant Māori groups including the New Zealand Māori Council and the Iwi Chairs Forum continue to advocate for its implementation.224 Minister for Māori Development Hon Willie Jackson also stated:225
...the Declaration is consistent with the duties and principles inherent in Te Tiriti o Waitangi and confirms the special cultural and historical position of Māori as tangata whenua of New Zealand.
It is also important to note that UNDA is not a perfect example of the concept of implementing the Declaration via an action plan. It has already been criticised on multiple fronts, including that a lot of what is proposed by the plan is vague and not measurable, and the goals that are measurable are not sufficiently ambitious.226 However, I argue that we can take the concept of
222 He Puapua: Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa/New Zealand (Ministry of Māori Development, November 2019) at 10. 223 He Puapua, above n 222, at 13.
224 He Puapua, above n 222, at 3.
225 Cabinet Paper “United Nations Declaration on the Rights of Indigenous Peoples Plan: Update” (30 March 2022).
226 Sarah Mainville, Louise Kyle and Emily Peiffer “A Critical Plan with its share of Criticisms: Canada’s
UNDRIP Implementation Action Plan” (22 June 2023) JFK Law <jfklaw.ca>.
a legislative framework to implement the Declaration, and recognise the function it can provide in coordinating state law progress across different important policy areas. Coordinating the use of different strategies will help us to intentionally shift the archetype towards coactive legal pluralism. Therefore, legislating a Declaration action plan is a measure worth highlighting.
CONCLUSION
This chapter has shown that bridging is the strategy best able to prepare the seedbed for future constitutional transformation. In this way, if multiple exercises of bridging are coordinated across different areas of the law, we may shift Aotearoa/New Zealand’s archetype towards coactive legal pluralism and towards constitutional transformation. The final sections of this chapter illustrated some examples of how we might we pursue this in practice, in the education sector and with a Declaration plan.
V CONCLUSION
Aotearoa New Zealand is currently suffering from a lack of constitutional legitimacy, due to a series of longstanding suppositions finally being perforated by facts as to the presence and status of tikanga Māori as the first law of these lands. Although there are no simple answers beyond this, we do know that legal pluralism is present in Aotearoa New Zealand, and it has become necessary, if not urgent, to dedicate ourselves to discerning how our two legal systems of tikanga Māori and state law might be reconciled with one another.
This dissertation has drawn attention to Swenson’s typological framework as a means to helping us navigate and structure this reconciliation and also to simply help us get a better grip of what legal pluralism may look like in practice. Although Swenson’s model had its limitations, these were able to be overcome by separating the ideas out from any unconscious assumptions Swenson had included in them, and in the case of the archetypes, extending the model to include a fifth variation. I believe for this effort the model has become applicable to Aotearoa New Zealand and useful for understanding state and non-state interactions here.
When applied to Aotearoa New Zealand, Swenson’s typological framework allowed us to make principled judgements on the merits of different forms of legislative recognition of tikanga Māori. In using the framework, we were able to show that coordinating the strategies might help us shift closer towards the coactive archetype, the archetype most synonymous with constitutional transformation. Further, we showed that the middle-ground position, “preparing the seedbed” may be achieved through conscious engagement of the bridging strategy in important policy areas such as health and education.
Exercises of bridging in legislation allow for Māori decisionmakers to use tikanga Māori as authority in the course of their decision-making. They are provided with the space to make those decisions autonomously and without unreasonable interference from state law. Using the bridging strategy will help tikanga to rebuild and learn to adapt and respond to novel situations, which will expand our horizons for imagining constitutional transformation.
However, I also acknowledge that any inclusion of tikanga Māori in state legislation will result in tikanga being considered subordinate to state law, which is why in itself bridging remains a
“strong form of weak” legal pluralism. This dissertation just wishes to highlight Swenson’s model as providing a new frame of reference with which to consider our journey towards constitutional transformation, it does not provide a perfect solution. It presents a new way to justify the use of independent authority models such as Te Aka Whai Ora as an achievable first step towards that constitutional transformation.
It is not a binary choice; to constitutionally transform, to not. For Aotearoa New Zealand to reach that state of enlightenment, it will require consistent progress, which means we must continue to present achievable options for change, and we must be unafraid of making mistakes. Even Moana Jackson agrees that we must continually develop our understandings in order for the correct path towards constitutional transformation to make itself apparent.227 In continuing with my metaphor, the seedbed must be tended to with patience and persistence; it takes many years for soil that has been neglected and contaminated for so long to become fertile again.
227 Moana Jackson “Changing Realities: Unchanging Truths” (1994) 10 Australian Journal of Law and Society 115 at 129.
VI BIBLIOGRAPHY
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I Dissertations
Fanaafi Aiono-Le Tagaloa “The Land and Titles Court of Samoa 1903-2008: Continuity amid Change” (PhD Thesis, University of Otago, 2009).Mel Jessep “Stuff the transactional shit: Learning through the lived experience of the Rangatahi Court” (Masters of Criminal Justice Thesis, University of Canterbury, 2022).
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J Conference Papers
Anne Griffiths “Customary Law in a Transnational World: Legal Pluralism Revisited” (paper presented to Conference on Customary Law in Polynesia, 12th October 2004).Annette Sykes and Coral Panoho-Navaja “Takutai Moana” (presented to Te Hunga Rōia Māori o Aotearoa Hui-ā-Tau, 25 August 2023).
Robert Joseph “Indigenous Peoples’ Good Governance, Human Rights and Self-Determination in the Second Decade of the New Millenium – A Māori Perspective” (paper presented to the United Nations Permanent Forum on Indigenous Issues, Thirteenth Session on Good Governance and Human Rights, New York, 12-23 May 2014).
K Newspaper and Magazine Articles
Dewi Preece “Māori Health authority one year on, has it been a success?” 1News (online ed, New Zealand, 2 July 2023).Ian Powell “Māori child health inequities research reinforces case for a Māori Health Authority” New Zealand Doctor (online ed, New Zealand, 13 February 2023).
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Te Kuru o te Marama Dewes “The ongoing fight for Māori to school our own, our way” The Spinoff (online ed, New Zealand, 21 April 2022).
L Other Resources
Brief of Evidence of Donna Awatere-Huata, Waitangi Tribunal Mana Wāhine Kaupapa Inquiry (Wai 2700, 21 January 2021).
Sarah Mainville, Louise Kyle and Emily Peiffer “A Critical Plan with its share of Criticisms: Canada’s UNDRIP Implementation Action Plan” (22 June 2023) JFK Law <jfklaw.ca>.The Youth Court of New Zealand “The Rangatahi Courts Newsletter Special Edition – The Rangatahi Courts’ Hui” (newsletter, 3 July 2013).
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