Nā Carwyn Jones

The Supreme Court has just reminded us that our law is indeed sourced in two streams and that the legal profession ought to be prepared to engage with Māori law as part of the common law of New Zealand.

In 1996, speaking to the role of Māori law within the New Zealand legal system, then Māori Land Court Chief Judge Durie (now Justice Sir Edward Taihakurei Durie) posed the following question:

“Will we recognise the laws of England or the laws of New Zealand and if the latter, will we hone our jurisprudence to one that represents the circumstances of the country and shows that our law comes from two streams?”

Nearly a quarter of a century later, the Supreme Court came to consider the role of Māori law in the context of an appeal made by Peter Ellis.

Mr Ellis was convicted in 1993 on 16 charges of sexual offending against seven children who had attended the Christchurch Civic Childcare Centre, where Mr Ellis had worked.

Prior to the current appeal, Mr Ellis had appealed twice to the Court of Appeal. The first appeal quashed three of the convictions. The second appeal against the remaining convictions was dismissed.

In 2019, Mr Ellis was granted leave to appeal to the Supreme Court. However, Mr Ellis died before the appeal could be heard.

In November 2019, in Peter Hugh McGregor Ellis v The Queen [2019] NZSC 49, the court heard submissions from the parties on whether, in light of Mr Ellis’ death, the court had jurisdiction to continue to hear the appeal. During the hearing, Justice Glazebrook raised the question of whether Māori law had anything to say on the issues before the court, asking:

“Isn’t it a matter of law though, isn’t the question being asked, given that we are in Aotearoa, given that we have the Treaty, given that we have statements, at least both extra judicially and otherwise, that tikanga should be part of the common law generally, and in fact it should always have been part of the common law historically …”

Counsel had not prepared submissions on this issue and following the November hearing the court asked for further submissions on:

whether tikanga is relevant to any aspect of the court’s decision on

1. whether the appeal should continue;
2. if so, which aspects of tikanga; and
3. if relevant, how tikanga should be taken into account.

Mr Ellis was not Māori. This case did not rely on legislation that explicitly invoked the principles of the Treaty of Waitangi or required consideration of tikanga Māori. The subject matter is not directly related to Māori rights and interests in land, natural resources, collectively held assets, iwi/hapū governance, or similar issues.

The Supreme Court was interested in exploring the relevance of tikanga to the applicable common law even though there was no particular Māori element within the facts of this case.

Tikanga Māori’s role

The court’s engagement with this issue indicates a willingness to engage with tikanga Māori as a source of law.

Tikanga is the right or correct way of doing things within Māori society. It is a system comprised of practice, principles, process and procedures, and traditional knowledge. Tikanga encompasses Māori law but also includes ritual, custom, and spiritual and socio-political dimensions that go well beyond the legal domain.

The court’s engagement with this issue indicates a willingness to engage with tikanga Māori as a source of law.

As a system, it provides processes for dispute resolution, it prescribes authority for decision-making (and constraints on that authority), and has distinctive mechanisms for enforcement and remedy.

Tikanga is not a fixed cultural artefact, frozen in time at some point prior to 1840. Neither is it inherently uncertain or unknowable. Like all healthy legal systems, tikanga has built-in processes to enable it to develop according to key principles, past practice, and pragmatic assessments of the needs of a changing society.

In short, tikanga Māori incorporates a system of Māori law which includes the full range of mechanisms associated with a fully-functioning and dynamic legal system.

Māori legal scholar, Ani Mikaere, has described tikanga Māori as “the first law of Aotearoa” and tikanga has been recognised by the New Zealand state legal system in various statutes and through the common law.

One of the best known examples of statutory incorporation is the use of the concept of kaitiakitanga in the Resource Management Act 1991, intended to reflect a Māori ethic of guardianship.

The New Zealand courts have, from time to time, confirmed that particular tikanga practices can be recognised as customary law. Takamore v Clarke [2012] NZSC 116 is currently the leading authority on the role of tikanga Māori as part of the common law of New Zealand.

This case arose from a dispute about who had the right to decide where the body of a deceased person would be buried and of particular relevance was the role of tikanga (specifically, in this instance, Tūhoe burial customs) in such decisions.

The Supreme Court found tikanga Māori to be relevant to decisions about burial. The majority determined that Māori burial customs were a relevant consideration to be weighed among others by the executor or the personal representative of the deceased.

In a minority judgment, Chief Justice Elias concluded that the law did not provide a determinative rule or law as to who can dispose of a deceased but noted (at [94]) that:

“Values and cultural precepts important in New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction” and that “Maori custom according to tikanga” forms “part of the values of the New Zealand common law.”

Precisely how tikanga ought to be weighed as “part of the values of New Zealand common law” is a factor that may prove determinative in the Ellis appeal.

Submissions on the role of tikanga in that appeal were heard by the Supreme Court on 26 June 2020 and included submissions from Te Hunga Roia Māori o Aotearoa – the Māori Law Society as an intervener.

The Supreme Court decided the appeal is to continue despite the death of Mr Ellis. The Court has advised that reasons for this decision will be provided at the same time as the decision on the substantive appeal is released.

But, however tikanga is addressed in those reasons, this case has already made it clear that, no matter what the subject matter, lawyers should be prepared to consider the relevance of tikanga, as a system of Māori law, to the common law of New Zealand. ▪

Dr Carwyn Jones (Ngāti Kahungunu) is an Associate Professor at the Faculty of Law at Te Herenga Waka – Victoria University of Wellington. He is the author of New Treaty, New Tradition – Reconciling New Zealand and Māori Law and is co-editor of the Māori Law Review.