Pokere v Bodger – Ōuri 1A3 (2022) – tikanga and trusteeship, our first bilingual judgment
Te whakataunga tuatahi i ngā reo e rua
First bilingual judgment
A significant milestone was reached in December of last year when the Māori Land Court issued the first fully bilingual judgment in the history of a New Zealand court, Pokere v Bodger – Ōuri 1A3 (2022) 459 Aotea MB 210. This judgment highlights the growing presence and acceptance of te reo Māori as a language of justice.
The release of this judgment coincided with some other significant anniversaries for te reo Māori and the law; the 50th anniversary of the Māori language petition, the 40th anniversary of te kohanga reo and the 35th anniversary of te reo Māori becoming an official language of Aotearoa New Zealand.
The appointment of Dr Ruakere Hond as a pūkenga to assist the Court, under s 32A of Te Ture Whenua Māori Act 1993, allowed for an expert in both te reo and the tikanga of the relevant area to lend his expertise to the matter. This is the first appointment under this provision, which allows tikanga experts from the area where the dispute arises to be appointed by the judge as pūkenga.
A feature of the written judgment is that te reo Māori and English are presented side by side in columns, as opposed to a full width version in one language followed by the other.
Judge Aidan Warren, former Tumuaki of Te Hunga Rōia Māori o Aotearoa, received a request from the applicants to be heard and submit in te reo Māori, including in written submissions. Counsel for the applicants, Ms Alana Thomas (as she then was, now Judge Thomas), also a member of Te Hunga Rōia Māori, represented her clients in te reo Māori. In response, the Court appointed Dr Hond as pūkenga and to support the presentation of the applicant’s case in te reo Māori. Te reo Māori is frequently used in verbal submissions and discussion in the Māori Land Court, which is encouraged and supported. The element of receiving written submissions fully in te reo presented an opportunity for the Court to issue the resulting judgment bilingually.
The Case: Pokere v Bodgers
A trio of applications were brought challenging a decision of the trustees of the Hanataua Trust to evict a long-time occupant of a house on the trust’s land and to demolish that house. The first application was for a review of trust and enforcement of trust obligations, including obligations arising under tikanga. The second was an application to set aside the house site as a reservation and the third sought an injunction to prevent demolition of the whare.
The trustees had taken steps to evict the long-time resident of the homestead and begin its demolition. The applications sought to prevent this due to the importance to the iwi of the whare and the kaitiaki role of its resident. The Kaunihera Kaumātua had also placed a rāhui on the whare to prevent its destruction.
The Court reviewed the tikanga pleaded that apply to the situation and held that the trustees had made their decisions in a proper way, finding that they had not breached tikanga nor their statutory trustee duties.
The role of the whare within its context and the role of Ms Warren and her whānau were examined and the Court upheld the trust’s decision to demolish the whare. The Court suggested a course of action to achieve ea (resolution or settlement) in this situation, by holding wānanga to discuss with whānau, beneficial owners and those connected to the land about their aspirations for their whenua and what might replace the current whare.
Ultimately, all three applications were dismissed with the issue of costs to be determined.
Tikanga i roto i ngā herenga kaitaratī
Tikanga and trustee duties
This case highlights the interface between trustee duties and tikanga in the context of Māori land trusts. The trustees, while accepting they have duties under tikanga, argued that it was whānau tikanga, rather than tikanga of the hapū or iwi, that applied and disputed the applicants’ claim that the whare was like a marae.
Judge Warren and Dr Hond considered the matter of trustee duties under tikanga as well as statutory and common law duties, noting that “there is little doubt that tikanga colours how [Māori land] trustees are to exercise their powers and responsibilities.”
The tikanga aspects put to the Court by the applicants, that the trustees were allegedly in breach of, were kaitiakitanga, whanaungatanga, rāhui and whakamoe whare. The Court observed that these were of two types; the first two being tikanga values and the last two being customary practices. In assessing these arguments, the Court accepted that “whanaungatanga and kaitiakitanga are principles central to guiding persons in leadership roles, including trustees.”
Like the Supreme Court in the Wairarapa Moana ki Pouākani Incorporation v Mercury NZ  NZSC 142 decision, the Māori Land Court emphasised that context was a key consideration in considering tikanga application to legal matters:
We do not seek to prescribe tikanga duties. We will certainly assess the ones pleaded here, but invariably it is the context that will determine what principles or values apply and the specific duties that arise as a result. Similar to fiduciary law, where the duties and remedies arise based on the nature of trustee/beneficiary relationship, as opposed to prescription, tikanga is also relational and context specific.
Whether trustees have duties under tikanga was analysed with the Court concluding that this is specific to each Māori land trust, based on beneficiary expectations in the whakapapa context of the trust.
The Court analysed each of the breaches of tikanga in turn and held that in this case the trustees were not in breach of tikanga; rather, the trustees were exercising their duty to protect the trust’s property, as the house needed urgent repair or replacement.
As noted recently by Acting Chief Judge Fox in speaking on tikanga within the Māori Land Court, this decision is a significant development within the Courts in both its form and approach.