New Zealand Law Society - History of te reo Māori in the courts

History of te reo Māori in the courts

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Every year since 1975 New Zealand has marked Māori Language Week.

Māori Language Week 2016 runs from 4-10 July, under the theme: "ākina te reo – behind you all the way", which the Te Taura Whiri i te Reo Māori/the Māori Language Commission says is about using te reo Māori to support people, to inspire and to cheer on.

The Ministry of Justice has recently made efforts to encourage the daily use of te reo in High Court proceedings, publishing translations of Māori court announcements (ngā pānui i te reo Māori) and training District Court officers and staff with flip-cards to better pronounce and understand Māori phrases.

For example: "Silence, all stand for His/Her Honour the Queen's Judge" in te reo Māori is: "Kia rite mō te Kaiwhakawā o te Kuini, e tū koa".

The new te reo announcements, introduced with the support of Chief Judge Jan-Marie Doogue and the guidance of Judge Taumanu, have been heard in District Courts since February, with court staff assisted by a "buddy" training system and audio pronunciation guides.

However, use of te reo Māori not always been welcome in New Zealand courts.

"Speak no Māori"

In the early 1800s the te reo Māori was the most predominantly spoken language in Aotearoa, albeit with regional variations developed over hundreds of years of pre-European settlement by Māori in New Zealand.

Savvy Pākeha settlers quickly learned to speak Māori to facilitate trade, and by 1820 a collaboration between Cambridge University's Professor Samuel Lee and Māori chief Hongi Hika had codified te reo Māori, traditionally an oral and symbolic language only, in writing that was widely shared and learned across the country.

It was not uncommon for government officials, church leaders and other prominent Pākeha to korero/ speak Māori.

A century later, though, as English and the Western 'way-of-life' took hold in New Zealand, use of te reo had sharply declined and become confined to mostly to Māori communities.

By the 1950s it was feared that te reo Māori may disappear entirely.

Most Pākehā did not understand that the Māori language was an essential expression and envelope of Māori culture, important for Māori in maintaining their pride and identity as a people. Speaking Māori was now officially discouraged, and many Māori themselves questioned its relevance in a Pākehā-dominated world where the most important goal seemed to be to get ahead as an individual.

The Māori language was suppressed in schools, either formally or informally, to ensure that Māori youngsters assimilated with the wider community.

- New Zealand History "History of the Māori language"

From the 1970s many Māori began to reassert their identity as Māori. An emphasis on the language as an integral part of Māori culture was central to this identity. Māori leaders were increasingly recognising the danger that te reo would be lost.

The fight for the right to kōrero Māori

In 1979, well-known activist and repeat self-represented litigant Te Ringa 'Dun' Mihaka challenged the legal status of te reo Māori, after the District Court had refused to let him speak his native language during proceedings.

In Mihaka v Police [1980] 1 NZLR 453 the Court of Appeal agreed that use of the Māori language was a matter of public importance, but held that, under English common law applicable in New Zealand since 1840, Mr Mihaka must speak English.

"...any extension of the official use of the Maori language is a matter for the legislature, not for the Courts. English has been the customary language of the Courts in New Zealand from the earliest colonial days," Richardson J stated (at 462).

While he lost the battle, Mihaka's appeal fuelled the fires of change that ultimately won the war – when te reo Māori was recognised as an official language in 1987.

The official legal empowerment of te reo Māori in the courts stemmed from a Report of the Waitangi Tribunal on The Te Reo Maori Claim, released in 1986.

Referencing Mihaka's case, the Tribunal reported that, under the law as it was then, "no Māori may use his language in the Courts of New Zealand if he can speak English". That was inconsistent with Aotearoa/New Zealand's bi-cultural foundation," it held.  

Te reo was a taonga (treasure) that the Crown (government) was obliged to protect under the Treaty of Waitangi, the Tribunal said.

Ultimately, it recommended Māori be declared an official language of New Zealand (which it was two years later under the Māori Language Act 1987). The Māori Language Commission / te Taura Whiri i te Reo Māori was also established under the Act to promote te reo Māori.

The Tribunal recommended five ways for the government to remedy the breaches of the treaty in relation to te reo:

  • pass laws allowing the language to be used in courts and in dealings with local and central government;
  • establish a statutory body to 'supervise and foster the use of the Māori language';
  • examine the teaching of te reo Māori and 'ensure that all children who wish to learn Māori should be able to do so';
  • recognise and protect te reo in broadcasting;
  • and ensure that fluency in both Māori and English became a necessary or desirable requirement for some public service positions.

The law today is clear – you may speak Māori in court

More recently, a decision of the Waitangi Tribunal's Judge Ambler refusing to allow cross-examination of two non- Māori expert witnesses in te reo was judicially reviewed with partial success.

In Green v Te Rōpu Whakamana i te Tiriti o Waitangi (Waitangi Tribunal) [2014] NZHC 723 Justice MacKenzie said the law (under the previous Māori Language Act 1987) was clear: "persons listed [in the Act] may speak Māori in any legal proceedings, whether or not they are able to understand or communicate in English".

"It is not a requirement that the person cross-examined is able to understand te reo Māori," Justice MacKenzie said [at 12].

However, in the circumstances of the proceeding, and with the need to allow "considerable latitude
 to the Waitangi Tribunal on matters of procedure", His Honour chose not to overturn the Tribunal's ultimate decision not to allow counsel to cross-examine in te reo.

As Judge Ambler had originally noted, the Treaty of Waitangi Act (which created the Tribunal) "expressly does not create an absolute entitlement to hearings or to representation by counsel or to the manner in which hearings are conducted".

"In a perfect environment all claimants and witnesses would have the time they needed to present their evidence as they see fit. But they must all modify their approach to fit within the constraints of the inquiry."

While it was not open to the Tribunal to require cross-examination in English, procedural necessities and the Tribunal's broad powers to regulate its proceedings led Justice MacKenzie to hold that cross-examination was not wrongly refused.

He noted the difference between considerations of expediency in the Waitangi Tribunal compared with defendants' right to use te reo Māori in a criminal trial. In that context, the "defendant's right to a fair trial must take precedence over considerations of time, cost and convenience," Justice MacKenzie said [at 16].

The right to speak Māori in court is today found in section 7 of Te Ture mō Te Reo Māori 2016/the Māori Language Act 2016, and the procedural rules, including the direction that parties provide advanced notice of their intention to speak Māori, can be found here.

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