As Parliament girds itself for the introduction next month of David Seymour’s Treaty Principles’ Bill, a Select Committee yesterday grappled with another collision between Te Ao Maori and our British-based legal system.
This time, it was ostensibly about whether University law schools should compel students to study Tikanga Maori.
But in the background was another argument, put forward in a New Zealand Initiative paper this week, that the Supreme Court was overstepping itself by taking Tikanga into account in some cases.
That has been prompted by its 2022 decision that the former Christchurch Creche worker, Peter Ellis, could bring a posthumous appeal against his 1993 convictions on for allegedly sexually abusing children at the creche.
The Court agreed with Ellis’s submission that tikanga was New Zealand’s first law and was still part of the common law.
“Not only does it mean that Māori have particular rights and interests, but it represents common values, processes and principles that are of relevance to wider Aotearoa,” the Court judgement said.
“A fundamental part of tikanga is ensuring balance and making things correct.
“If uncorrected, the hara (offence) remains and is passed onto the next generation until it is corrected or a resolution found.
“It is acknowledged that Mr Ellis was not Māori, but in this case, tikanga should inform the interpretation and development of the common law.”
The Appeal Court last year rested its relaxation of the criteria which a hapu or iwi could sue to claim customary title to the foreshore and seabed with another decision from 2003, which asserted that at common law, all the customary rights of an Indigenous community continued to exist following the acquisition of sovereignty by the British Crown unless and until those rights were lawfully extinguished.
Not surprisingly, this line of reasoning in our courts has its opponents, in particular Gary Judd, an Auckland Kings’ Counsel who formerly chaired the ASB Bank.
His general attitude to Tikanga Maori is summed up in a column he wrote for the right-wing New Zealand Centre for Political Research.
“It has taken centuries for humanity to struggle and claw its way out of a swamp of ignorance and superstition to gain an understanding of the world, of the universe in which we live, and to use that understanding to create better lives for all,” he wrote.
“Yet, there are those who act as if they wish humanity to reverse course and return to a world of ignorance and superstition.”
Yesterday, he appeared in front of Parliament’s Regulations Review Committee to complain about a requirement that University law schools make the teaching of tikanga compulsory from next year.
Judd claims that a regulation issued under the Professional Examination in Law (Tikanga Māori Requirements) Amendment Regulations 2022 conflicts with Parliament’s Standing Orders, which say that regulations may not “trespass unduly on personal rights and liberties.”
Speaking to the Committee he said Tikanga could not be known by the ordinary person because it was taboo and kept confined to certain people.
“It is self-evident that this is not law, and saying it is law does not make it so,” he said.
“There has been a determined and concerted effort by political activists to make this amorphous spiritual culture part of the law.
“We have judges who are, in my submission, renouncing their role as impartial upholders of the law in favour of the advancement of this political decolonisation agenda.”
He said people who were unaccountable to the general public were having a silent, perhaps decisive say in the community’s affairs by pursuing a decolonisation agenda.
But Justice Neil Campbell, the chair of the Council for Legal Education said it wasn’t a question of whether a law student agreed with the principles of Tikanga or not.
He said the Council had to take the law as it saw it.
“It doesn’t require them to subscribe to Tikanga; it doesn’t even require them to subscribe to cases like Ellis, which have identified the role that Tikanga applies in New Zealand law,” he said.
“The law schools around New Zealand already require, as a result of regulations long passed by the council, students to take all sorts of a number of subjects.”
He said that there were aspects of contract law that reflected quite individualistic approaches to the law.
“Again, yes, we do require the students to learn those because if they don’t, they will not be competent lawyers,” he said.
“But it doesn’t mean that by making them learn contract law that we make them subscribe to those underlying philosophies or principles.”
Campbell’s case for introducing the compulsory Tikanga courses is that the courts are already considering tikanga in cases and therefore lawyers need to understand it.
But it is the role of the courts in doing this that worries the New Zealand Initiative.
In a report public shed this week, its chair, Roger Partridge, argues that concern about New Zealand’s courts – particularly the Supreme Court – may never have been greater.
“And for good reason,” he said.
“A growing body of Supreme Court decisions shows a court that has misunderstood its role and overstepped its constitutional bounds.”
Much of his 52-page report focuses on the implications of the Ellis decisions and its reliance on Tikanga.
He said the Supreme Court’s approach creates uncertainty and represents a troubling encroachment on Parliament’s legislative role.
“By leaving the relationship between tikanga and the common law to be determined ad hoc, the Court has awarded itself the power to shape the law according to the judges’ perception of cultural values.
“However, that role is properly one for a democratically elected Parliament.”
In its submission to the Select Committee, the Maori Law Society says Judd’s complaint is based on antiquated views that take an “outdated, myopic view of the law in New Zealand.”
“The claim that tikanga is not the law is inconsistent with historic and modern views about the place of tikanga.
“Judges, legal academics and law practitioners now generally accept that tikanga has the normative characteristics of law and can be applied as such.
“Tikanga delivers on the core values we need in a legal system.
“It adds coherence to our legal framework and can be applied to deliver certainty, consistency and predictability.”
This Select Committee hearing is only the beginning of Parliament’s attempts to define how customary Maori rights interact with the rest of the legal system.
It is the kind of thing that often happens to Governments: What they least expected to happen ends up becoming one of the main determinants of their reputation.
Expect to hear a lot more about the arguments that were rehearsed at the Committee yesterday.
