My concerns stem in part from my experience as a student at Auckland University in 1967 when I was enrolled to study Mãori.
The Mãori oral exam was held at the end of August and I was due to leave the country a few days later for University in England. As I walked towards the building where I was to be examined I met the student who preceded me and asked him how the examination had gone. He said it was "hopeless" as "I couldn't understand the examiner's dialect".
In saying this, he appeared genuine and quite dispirited.
(I didn't have this problem as I had attended the sessions that taught the dialect that the Mãori faculty promoted and I passed the exam.)
This incident has been on my mind as I reflect on the so-called principles of Tikanga.
In the 1960s, the Mãori language and much of Mãori culture had almost been obliterated. Mãori culture was hanging by a thread. It wasn't even possible to buy a Mãori dictionary. The Williams Mãori dictionary, which was the definitive dictionary at that time had long been out of print and there were only six copies of it in the university library. The Mãori faculty was critically dependent on those six books.
The student who preceded me for the oral exam was Mãori by race. The fact that he couldn't understand the questions he was asked in a Mãori oral exam showed that the Mãori language at that time, had different dialects, and that in some cases at least, the dialects were so divergent that the speakers couldn't even understand each other.
As I understand Tikanga, it assumes that in general all the Mãori tribes had similar principles for the regulation of their societies, being principles that in general should apply to New Zealand today since Winkelmann CJ said in the Supreme Court in Ellis v R [2022] NZS114 that Tikanga "was the first law of New Zealand and was not displaced or extinguished by the arrival of the English common law" [172]
In the same case, Glazebrook J said that “Tikanga Māori principles are part of the common law of Aotearoa." [85]
The Judges of the Supreme Court in the Ellis case said the following about Tikanga:
(a) That Tikanga involves “Mãori principles".
(b) Tikanga "may require appropriate consideration of the Mãori language, customs, beliefs, and the importance of the community, whanau, hapu and iwi." [99]
(c) Tikanga "includes all the values, standards, principles and norms that the community subscribe to ... " [111] [169] Mãori
(d) "Tikanga will need to be considered where it is relevant to the circumstances of the
case." [117]
(e) "Some Tikanga might be tapu (sacred) and kept confined to certain expert people."
(f) Tikanga "is a system of law providing predictability and templates and frameworks to guide actions and outcomes." [180]
(g) "Tikanga Maori means the right Mãori way of doing things. It is what Mãori consider is just and correct." It includes all of the values, standards, principles or norms that the Mãori community subscribe to, to determine the appropriate conduct" (Sir HM Mead and Prof Temara, paras 25 and 26. This report is annexed to the Ellis decision).
In saying this, he appeared genuine and quite dispirited.
(I didn't have this problem as I had attended the sessions that taught the dialect that the Mãori faculty promoted and I passed the exam.)
This incident has been on my mind as I reflect on the so-called principles of Tikanga.
In the 1960s, the Mãori language and much of Mãori culture had almost been obliterated. Mãori culture was hanging by a thread. It wasn't even possible to buy a Mãori dictionary. The Williams Mãori dictionary, which was the definitive dictionary at that time had long been out of print and there were only six copies of it in the university library. The Mãori faculty was critically dependent on those six books.
The student who preceded me for the oral exam was Mãori by race. The fact that he couldn't understand the questions he was asked in a Mãori oral exam showed that the Mãori language at that time, had different dialects, and that in some cases at least, the dialects were so divergent that the speakers couldn't even understand each other.
As I understand Tikanga, it assumes that in general all the Mãori tribes had similar principles for the regulation of their societies, being principles that in general should apply to New Zealand today since Winkelmann CJ said in the Supreme Court in Ellis v R [2022] NZS114 that Tikanga "was the first law of New Zealand and was not displaced or extinguished by the arrival of the English common law" [172]
In the same case, Glazebrook J said that “Tikanga Māori principles are part of the common law of Aotearoa." [85]
The Judges of the Supreme Court in the Ellis case said the following about Tikanga:
(a) That Tikanga involves “Mãori principles".
(b) Tikanga "may require appropriate consideration of the Mãori language, customs, beliefs, and the importance of the community, whanau, hapu and iwi." [99]
(c) Tikanga "includes all the values, standards, principles and norms that the community subscribe to ... " [111] [169] Mãori
(d) "Tikanga will need to be considered where it is relevant to the circumstances of the
case." [117]
(e) "Some Tikanga might be tapu (sacred) and kept confined to certain expert people."
(f) Tikanga "is a system of law providing predictability and templates and frameworks to guide actions and outcomes." [180]
(g) "Tikanga Maori means the right Mãori way of doing things. It is what Mãori consider is just and correct." It includes all of the values, standards, principles or norms that the Mãori community subscribe to, to determine the appropriate conduct" (Sir HM Mead and Prof Temara, paras 25 and 26. This report is annexed to the Ellis decision).
Although the Supreme Court has said that Tikanga includes "all of the values, standards, principles or norms that the Mãori community, subscribe to, to determine appropriate conduct" if as recently as the 1960s the Mãori tribes and sub-tribes were unable even to communicate with each other because they spoke so differently it seems strange and, dare I say it, unconvincing that they should have been able to agree upon such a comprehensive set of rules for the regulation of their societies in such a short time thereafter.
This conjecture seems to be justified by what is being said in some of the Tikanga judgments that are being delivered by the Courts, since it is said that the principles of Tikanga may differ from tribe to tribe and from sub-tribe to sub-tribe.
If that is so, how can the principles of one sub-tribe - which may differ from the principles of other tribes and sub-tribes - become the national law of New Zealand?
One of the biggest difficulties with Tikanga is trying to identify what the word means in different contexts. In the Ellis case it was held that "Where questions of Tikanga arise in the High Court, that Court may state a case and refer it to the Mãori Appellate Court, with the decision binding the High Court" [125] (and presumably binding the Court of Appeal and Supreme Court as well).
Many people may think it extraordinary that the High Court, the Court of Appeal and the Supreme Court are to be controlled by the Mãori Appellate Court concerning the meaning of Tikanga in all the different contexts where Tikanga arises for consideration.
When it comes to Tikanga, it is necessary to know what the rules of Tikanga are. When the Supreme Court wanted to know the answer to this question in the Ellis decision it relied upon a report from two Mãori experts whose report is annexed to the decision.
In other words, the Supreme Court appeared to have no confidence that a lawyer was able to inform them what Tikanga means or that there was any written source to which the Court could go.
When is giving judgment in the Supreme Court in the Ellis case, Justice Williams, who is Mãori, made it clear that the Judges do not have sufficient knowledge of Tikanga to be able to authoritatively declare what it requires. In his words:
This conjecture seems to be justified by what is being said in some of the Tikanga judgments that are being delivered by the Courts, since it is said that the principles of Tikanga may differ from tribe to tribe and from sub-tribe to sub-tribe.
If that is so, how can the principles of one sub-tribe - which may differ from the principles of other tribes and sub-tribes - become the national law of New Zealand?
One of the biggest difficulties with Tikanga is trying to identify what the word means in different contexts. In the Ellis case it was held that "Where questions of Tikanga arise in the High Court, that Court may state a case and refer it to the Mãori Appellate Court, with the decision binding the High Court" [125] (and presumably binding the Court of Appeal and Supreme Court as well).
Many people may think it extraordinary that the High Court, the Court of Appeal and the Supreme Court are to be controlled by the Mãori Appellate Court concerning the meaning of Tikanga in all the different contexts where Tikanga arises for consideration.
When it comes to Tikanga, it is necessary to know what the rules of Tikanga are. When the Supreme Court wanted to know the answer to this question in the Ellis decision it relied upon a report from two Mãori experts whose report is annexed to the decision.
In other words, the Supreme Court appeared to have no confidence that a lawyer was able to inform them what Tikanga means or that there was any written source to which the Court could go.
When is giving judgment in the Supreme Court in the Ellis case, Justice Williams, who is Mãori, made it clear that the Judges do not have sufficient knowledge of Tikanga to be able to authoritatively declare what it requires. In his words:
"while Judges must increasingly work with tikanga, they have neither the mandate nor the expertise to develop or authoritatively declare the content of tikanga. As with legislation, those roles belong in another place." [270]
Unhelpfully, the location of the "other place" was not specified.
What Williams J says in that passage is that Judges have insufficient knowledge of Tikanga to be able to declare what it requires. If Judges lack that knowledge, so too do all practising lawyers.
Section 4 of the Lawyers and Conveyancers Act 2006 requires that all lawyers in New
Zealand must comply with four fundamental obligations, the first of which is "to uphold the rule of law."
Despite Winkelmann CJ's description of Tikanga as " the first law of New Zealand" I doubt that any lawyer in New Zealand has sufficient knowledge of Tikanga to be able to comply with the obligation in section 4 of the Lawyers and Conveyancers Act.
In circumstances where Parliament requires that all lawyers must “uphold the rule of law" - which appears to require us all to comply with the requirements of Tikanga, it is reasonable to ask Parliament to clarify what Tikanga means and what it requires of all lawyers and New Zealand citizens.
Barrister, Anthony Grant, is an adviser and litigator on the laws concerning Trusts and Estates. This article was sourced HERE
14 comments:
Well, we should create a parallel Pakeha customary system of courts. Maori should accept that if they truly believe in a co-governance model. So, you have a Maori Appellate Court bound to Tikanga and a Pakeha Appellate Court bound to Custom and Natural Justice.
Very informative, logical and makes alot of sense to me. Maybe the principals of the treaty bill might have been helpful?????
To Anon 6.20 : Maori do not want any co-system. Straight to tribal rule and ethnic supremacy is the goal . Now , irrefutable.
Tikanga doesn't need clarification it needs elimination.
The very credibility of those who work within the law, is in doubt if they take made up stone age custom ( Mumbo-jumbo) as any kind of basis to regulate a modern democratic society, need also to be removed from positions of responsibility that requires upholding the rule of law as it currently stands.
This is the nature of the common law. Courts make decisions and they become precedent.
There is an old quip: the constitution (of the United States) is what the supreme court says it is.
Similarly, Tikanga is what the courts say it is. The downside is that a judge having a bad (or ignorant) day and bind future decisions. And there used to be the check and balance of the chancery court of equity (until 1875). We no longer have that.
The common law trumps statute (according to Imperial Laws Application Act 1988) so we might as well get used Tikanga, or to be more precise, what courts say is Tikanga because it is here to stay.
Is there any other 1st world country in the entire planet that is busy trying to inject pre-Neolithic beliefs & customs into their legal system???
If there is one, how’s that working out for them?? 🤦♂️
Re: Anon 1231: In PNG, district courts are allowed to apply customary law (which over there means traditional tribal law) to disputes of a 'traditional' nature such as shortchanging on a brideprice.
I remember a case back in the early 90s when customary law saw women of one tribe being given to another as a peace settlement by a district court following tribal warfare. The high court in the capital intervened and said that this traditional way of settling a dispute was at odds with the rights inherent in PNG national law (derived from Queensland law). They effectively ranked customary/traditional law below the 'western' law that the country had inherited from the colonising power (Australia).
Now that the effect of tikanga has been revealed by the Supreme Court (it took more than 100 years for this apparently fundamental principle to be discovered) it will no doubt mean bigger fees for the lawyers. It will take decades of litigation to establish its scope.
Inserting the entirely arbitrary concept of ‘Tikanga’ into a modern civilised system of law appears very similar to adding oil to water, and expecting a perfect mix. The judicial ‘experts’ indulging in this fantasy appear to have mush for brains. But perhaps that is to be expected, given their lengthy period of brainwashing from college onwards.
Anon 11.12 'Tikanga is what the courts say it is.' This is incorrect, in reality the judges have said they have no idea of what the law is. They have passed such decisions on to others, they will then follow any direction they receive.
So, if our judges have admitted the law is beyond their comprehension, why do we need them? Use their own admission of being unable to do their job to terminate their employment immediately.
Anon@1.33, you clearly appreciate that when thinking of lawyers who've been in positions of influence (the likes of Palmer, Finlayson, Glazebrook, Williams, Winkleman, et al), when has one ever known them to provide clarity and certainty, let alone commonsense to prevail when there's future legal interpretation & litigation to be had? Snouts in the trough most certainly comes to mind.
Tikanga was probably what Douglas Adams had in mind when he came up the the Hitchhiker's Guide to the Galaxy quote which went: "We demand rigidly defined areas of doubt and uncertainty!" These words spoken by the philosophers Majikthise and Vroomfondel humorously argue against absolute, sterile truths, demanding space for human ambiguity and debate. Does this sound familiar? Well it does to me, bit like utter mumbo-jumbo ...
Tikanga belongs to the nineteenth century. It has nothing relevant to offer to the twentyfirst century. Next we will be burning witches at the stake again
The original Maori are also immigrants to this country.
So, why should there be a need of a seperate law, called Tikanga.???Which by the way, can be interpreted as the Expert believe it should be interpreted.
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