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Legal system hostile to Māori, academic says

20 October 2016

The New Zealand state legal system has for the most part been hostile to Māori, according to Otago University Law Professor Jacinta Ruru.

“This is why the learning of law for Māori students can be hard, and the practice of law for Māori can be tough,” Professor Ruru said in her inaugural professorial lecture, entitled Toitū te Whenua. Toitū te Mana delivered on 12 September.

“The Ngāti Apa case turned this around,” she said, referring to Ngāti Apa v Attorney-General [2003] 3 NZLR 643.

“It revived an earlier 1847 case and brought New Zealand back in line with early English common law and the contemporary common law developments in Canada and Australia.

“It held: ‘When the common law of England came to New Zealand its arrival did not extinguish Māori customary title … title to it must be lawfully extinguished before it can be regarded as ceasing to exist’.”

Key catalysts

The Ngāti Apa case was one of three “key catalysts” Professor Ruru identified when reflecting back on her research career that began in 1999 as an assistant lecturer at Otago University.

“The Ngāi Tahu Claims Settlement Act 1998 captured my attention. How could it not? It spoke to Ngāi Tahu relationships with the lands not of my tribal iwi but of my childhood.

“Here was legislative recognition that Mount Earnslaw was Pikirakatahi. I wanted to know more. And I wanted to understand why lands obviously so important to Māori were locked up in national parks with a legal ethos that is, and remains, premised on mono-cultural Pakeha values for protecting land.

“The Ngāi Tahu Claims Settlement was the first statute to punch significant holes into the walled national parks to let breathe again the Ngāi Tahu understandings of these lands. We still need a more inclusive National Parks Act 1980 explanation for the purpose of our national parks, and the Treaty of Waitangi settlement statutes provide the key for how to do this.

“The second catalyst was a 2002 Court of Appeal judgment Bruce v Edwards [2003] 1 NZLR 515.

“The unease I had felt in law school as a student came crashing back down on me as a lecturer as I read this case.

“The history of converting Māori customary lands into Māori freehold land represents a dark history of New Zealand where the colonial government and the colonial courts were entirely successful in breaking up the Māori estate.

A new era?

“However, that march in 1975 with the catchcry of ‘not one more acre of Māori land’ lead to new legislation in 1993 – Te Ture Whenua Māori Act – that supposedly marked a new reformed era with recognition that land is a taonga tuku iho.

“But the Bruce v Edwards case was the third in a row from the Court of Appeal to permit other legislation and principles to override the new 1993 Act. Even though the 1993 Act clearly marked a new era for Māori land with the overriding statutory intent to now keep Māori land in Māori hands, no upper appeal court had by then found in favour of Māori land retention.

“The Bruce v Edwards was the first case that I wrote about and marked the beginning of an area of law that has been a mainstay of my research and teaching career ever since.

“And the third catalyst was the Court of Appeal 2003 Ngāti Apa decision. This is the famous foreshore seabed moment.

Read case with joy

“I read the case with joy. This was it. This was the case that finally overruled conclusively an 1877 judgment naming Māori as ‘barbarians’ that had lived on for more than 120 years in New Zealand case law. It took a 2003 Court of Appeal judgment to conclusively overrule that 1877 case,” Professor Ruru said.

“In reflection, these three moments have shaped my research career. Toitū te Whenua. Toitū te Mana. Or in the words of the vision for Nga Pae o te Maramatanga NZ’s Māori Centre for Research Excellence: Ko te Māori e arataki ana i a Aotearoa ki te ao kei mua. Māori leading New Zealand into the future.

“And so our legal system evolves. Many challenges and opportunities are here right now for Aotearoa New Zealand to continue to embrace a more respectful legal system if we wish.”

Professor Ruru is New Zealand’s first Māori Law Professor.

Earlier this year, she was awarded the Prime Minister’s Supreme Award at the 2016 Tertiary Teaching Excellence Awards.

Last updated on the 20th October 2016