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Milroy, Judge Stephanie --- "Nga Tikanga Maori and the Courts" [2007] NZYbkNZJur 5; (2007) 10 Yearbook of New Zealand Jurisprudence 15

Last Updated: 24 April 2015

Ngaˉ Tikanga Maˉ ori and the Courts

Judge Stephanie Milroy^*

Tēnā koutou e rau rangatira mā, Te Arikinui, ngā mihinui ki a koe.¹

Firstly, I would like to acknowledge everyone who is here today, old students, past colleagues, past whaea and new whaea. It is enjoyable to be here on this particular occasion as it is the first symposium on tikanga that we have had and what a wonderful opportunity for the Law School to really firm up the promise that was made when this Law School actually first began.

In the beginning, Ani Mikaere was meant to be halftime as a liaison with the local Māori community and the wider catchment area that the University had. However, she and I were the only Māori teachers at the school, we had all sorts of teaching, all sorts of responsibilities to our students and it became apparent very quickly that she wouldn’t be able to fulfill that role, that we needed more Māori to be able to do that. It’s wonderful to see that a really good idea that we had at the beginning has started to emerge now. It has taken time but it is happening.

I am speaking first in this session because I have just started this new job that has thrown up a whole lot of issues for me. I don’t have a whole lot of answers, but what I do have are a whole lot of questions and I hope your comments will be able to help me in my current position. In particular, some of the questions that I have are about tikanga and its place in the courts. So, I have some stories to tell and some questions to ask you that you may or may not be able to answer. Some of my colleagues from the Māori Land Court, who are present today, have already asked a number of questions that I wanted to discuss with you so we’ll move on from there.

I wanted to ask how many of you here today have attended a court or seen a court process? The show of hands indicates that about 50 per cent of you here today have seen the court process. For those of you who haven’t attended a court proceeding, it is a really strange experience for anybody. On the one hand you go into a court, the Māori Land Court which talks about Māori land – a subject really dear to our hearts. With the exception of the Judge in the past, all the people that were there were Māori. What was happening

* Judge Stephanie Milroy of the Māori Land Court, Hamilton is from Tūhoe and Te Arawa.

Before taking up her role as judge, Judge Milroy was a Senior Lecturer at the Waikato Law

School.

1 This is a greeting to those present and to the late Te Arikinui, Dame Te Atairangikaahu.

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was something that was completely foreign and, as a Judge I feel as though I have a split personality. On the one hand I have all this Pākehā law, let’s face it the Ture Whenua Māori Act is imposed by a Pākehā institution and it is imposed upon Māori land and that’s what we are administering in the courts. At the same time I can understand some of the real issues, the issues that are happening to our people, the context of the problems that people are trying to struggle with and hopefully what will come out of today’s hui will provide some answers to the questions I pose.

All I have are questions, and as I said before I have this split personality to deal with. I would like to talk about the court process first. One of the things that people had mentioned in the past was a way of making the court more welcoming for Māori. We recognize that this is a foreign imposed institution. But how can we make it so that Māori are, at least, able to articulate their issues and feel that they are being listened and that their voices are heard?

Some initiatives that we have tried to implement are to encourage the use of te reo Māori, especially under Chief Judge Williams who is fluent and is a wonderful speaker of and in te reo Māori. The Māori Land Court begins each court session with a karakia and also there is the possibility of having marae based sittings. As stated earlier some things are better discussed on the marae than in the courtroom. However with all those initiatives there are related issues such as te reo Māori. Some of the people who come to the courts are fluent in te reo and find it much easier to speak in te reo and we encourage them to speak in whatever language they are most comfortable with. Then you have others who have a partial or no understanding of te reo and who are the other party. Then you have the Judge who must be able to understand and translate te reo later if they need to for the parties in court. But it is the other parties who may not have an understanding of te reo who will respond in English. There is an immediate problem there – both in the way that they’re presenting their cases which to me is always going to sound less authoritative in terms of saying ‘this is the way we’ve done things and therefore this is our agreement’ it sounds less authoritative in English than in Māori when talking about tikanga on the marae, or marae protocol. In some circumstances speaking English can sometimes be advantageous. So we’re starting to talk about the commercial, the business aspects, getting in advisors to advise you about your business, those very commercial aspects where English is the language. So there are issues which surround which language will be used in which circumstances.

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Karakia

I really like to start court with karakia (prayer) as it makes me feel safe and makes me feel like someone is watching over me. After all I am only human. There is something else there that would help me during the court sitting. However, there have been some situations which have arisen where some people have felt very uncomfortable with karakia and have left the court room until the karakia was finished and then have come back into the court room. It is part of their faith. It is not a matter of disrespect for the court or anything like that but because we’ve diverged over the centuries that we have had colonization we haven’t got an accepted standard of behaviour that is going to work in every situation. Again that is an example of a possible issue, though not one for the courts, as those that feel uncomfortable with karakia have the option of leaving the room and returning once karakia has finished.

Marae sittings

As I have said before, there are advantages to marae sittings² as there are things that people would feel more comfortable with if they were happening in marae sittings. The context is clear, as the kuia said earlier, people can see what is happening right there on the marae. There was a case where there had been a request to the court to go out and have a meeting with the people on the marae. The court declined that request because things had gotten so heated that the court thought that a neutral venue would be the only place to hold the court sitting. The reason the request was made to have a sitting on the marae was because the party that made the initial request wanted the people to see the state of the land, they wanted people to see what this person had done or not done to the land in relation to keeping up their lease. There is that sort of issue as well.

There is also the issue that it may be more difficult for the home people who are most likely to be affected by a decision in the court to attend a court sitting as opposed to attending a sitting on a marae. Should there be Saturday or Sunday sittings? Although this would be something I would be reluctant to do, a lot of people work and they would be excluded from attending a court sitting and hearing. What has been happening to their land when sittings are held on weekdays? There are those disadvantages but we have also got some issues for the court and I’ll just go through some of those issues. For instance, I’m not used to being welcomed specifically. It is a relatively new thing for me. It never occurred to me that people clean up their marae, get the kitchen going, organise all those things that happen behind the scenes in preparation for a marae sitting. In fact there is so much work and preparation that has to

2 A marae is a traditional meeting place.

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done beforehand so that they are in a state of readiness, just to get the court to go to their marae. This raises the question of whether or not we should be imposing that kind burden on the people of that marae. When we go to the marae, we take a number of staff who are hungry people. So much work goes into the organization of having a court sitting on a marae which places a burden on the people to feed and take care of the court contingent.

Then there are issues which one of my staff members raised before this hui. If you are sitting in the wharenui³ are you going to allow the judge to have a drink of water? Are you going to let the judge have peppermints? These issues seem small things, but where I come from you’re not allowed those things in the wharenui, but there are times when a judge needs these kinds of things. The whaea mentioned this morning that there are instances where court protocol and court kawa take over from the kawa of the marae and the protocol of the marae. So how can one feel comfortable as a Māori saying to a kaumatua ‘No, sit down. It’s not your turn yet, it’s this person’s turn’. There are all these kinds of issues that arise.

Some of the other types of issues that I have thought about are that a court sitting is normally recorded. We record everything that is said. Is that what people want when we’re talking on a marae or is that a place where we want frank and free discussion that will come out in the minutes in black and white for everybody to see later on?

I’ve already mentioned before that sometimes you do need to have a neutral area. Sometimes things become too difficult, too heated and they need to be taken out of that area and put in a place where people can begin to converse in a civil way. The other thing is that the very court process is not conducive to consensus building. Mediation – that’s a different situation. Again the court is looking to see whether mediation can be used more widely than it is. When you’re talking about an actual court sitting where a judge is taking evidence from one side and taking evidence from another side, then decides you’re the winner, you are the loser, that’s not conducive to building community feeling at a marae sitting. So those are some of the problems for the court in trying as I said to incorporate a more Māori face to what we are doing. That’s the process. There are other issues as well which may be dealt with during the course of this hui.

3 A wharenui literally is a large house, usually an ancestral house, and according to the laws and values of many Māori tribes, it is culturally inappropriate to eat food or drink inside these houses.

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Now in terms of the actual substance of what we are dealing with, as I mentioned earlier, there are some situations especially when you’re dealing with trusts. Some of these trusts are huge. There are some incorporations which are very wealthy – but they are more or less a handful. Now for those trusts and incorporations that are wealthy, they are run like businesses. They are making decisions about payment dividends, how much should be paid for grants, how much for marae and so on, but they are basically running as a business. In that sort of situation the Pākehā law, I think, is what applies. That is what they are using, that’s how they are operating.

An example where tikanga may come into the equation is if your trust is making a profit so that you are able to make payments, to pay out dividends, how much do you reserve for ongoing developments, increasing your business and so on, and how much do you pay out to the beneficial owners. Remember the trustees are not necessarily the beneficiaries or owners. Is it the job of the trustees to run a ‘spic and span’ business, up to the minute model business? Or is it that they should be making more payments as dividends to the actual owners so that they can benefit from the profits. So that is an area where what you are weighing up is business efficacy against the social and domestic needs of the people who are actually going to be affected by those decisions? Fortunately, that’s a problem for the trustees and not normally for the courts.

There are also situations where tikanga plays a huge role and I think the situation which my colleague brought up earlier, where marae trustees, marae committees or the beneficiaries of a marae, in all of those situations and issues they have come to be involved in, they get to the point where they feel they need to come to court to get direction, to get decisions. The difficulty for me is that it just seems so wrong that the court makes the decision. The marae is the centre of our life as Māori, that is where the decisions should be made, that is where the rangatiratanga is. The leadership is there, but the court is being asked to intervene in those situations. I think that we have been asked to intervene partly because there is that issue of an imposed system. The trustees may differ from the kaumātua, who may differ from the marae committees. That certainly is a part of it. I think the other issues revolve around the fact that a lot of people affiliate to marae, like myself, who are not the home people, they are not the people who are going to be there doing the cooking, the cleaning, organizing for tangi all of those kinds of things but who still have a real interest in that marae. Then you have people who are just beginning the journey of finding their roots again. They are all keen and enthusiastic and they want to get in there and take over. While you don’t want to discourage them, they still have to learn a few things.

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So there are those sorts of dynamics, where you have the home people and a new group of people who have a real interest in the marae and who have good ideas and enthusiasm but the way they do things in terms of tikanga may be a bit ‘rusty’. Then there are things like people misunderstanding what their roles are as trustees of a marae. In the western legal world it is very clear what the trustees’ roles are. They administer and manage the marae. They are the governance body of the marae. But what does that have to do with the kaumātua of the marae? Who are the people who are going to be talking on the marae, doing whaikōrero? Those are different roles but people have misunderstood the difference and that they may be overlapping roles. Sometimes I think they believe that certain roles have certain mana attached to them. I think it depends on how you look at it. Some people think that there is mana involved in being a trustee. Then there are others that think their mana comes from their tūpuna and that they don’t need to have a particular label.

There are other examples where there have been situations where the people of the marae have said they want young people who have lots of energy, lots of enthusiasm who want to go forward who can make all these applications for funding and so forth, and build us a lovely new wharenui and help us with our Māori health and so forth and these old trustees they haven’t done anything. Except those old trustees, the kaumātua have been the ones who have looked after the tikanga aspects of the marae life. What the people have done is that they have voted out those trustees and voted in new trustees. For a start they have voted. What does that tell us about our leadership structures our ways of bringing forward leaders now? Then you’ve got all these new young ones in and a kaumatua might say, ‘Well no I don’t want to stand down. I can contribute something and I have waited for them to come to me and ask me for my advice, they haven’t. They’ve just ignored me.’ It brings up those issues of old ways of doing things, expectations, versus newer ways, it comes back to those things that we were talking about earlier – the compromises that have been made and the changes that are occurring because our whole way of life has changed.

Those are some of my questions. The issue of leadership, I think, is central to what is happening or not happening on marae. That is not going to be answered by the court. When I’m sitting there hearing these things especially about marae, what I want is for the people to have another go and try and work it out for themselves. The last thing I want to do is make a decision for people on their own marae. Sometimes you have to make a decision otherwise the people get stuck where they are. From my point of view the court has got a role in trying to get people to talk to each other. But there is a point where you

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have to stop and say sorry this is how is how it is going to be. But it should go back to the marae and should be up to us, as Māori, to start figuring out how to deal with some of these issues.

Some other things for me, I can never get a straight answer about tikanga from my father. He never teaches me by telling me, he teaches me by showing me. That’s how I’ve learnt to act on the marae. Someone will give me an evil look or some signal that tells me I’m doing something wrong. That is quite hard to articulate – all you have to go on is instinct, when you feel when something is right or feel when something is going wrong or just doesn’t feel right. When I’m having to think about a particular case where I have to write a decision saying this or that or the next thing, I’m not in a position to say that this the is the tikanga of that marae. Our Chief Judge is trying to get funding and trying to move the court to where we will be able to sit with pukenga (experts), Māori experts in tikanga and reo. Whether we get that – who knows? But certainly I feel the need to have local Māori experts to advise us on the tikanga of this area. We had this Māori appellate court case about succession where it involves whāngai. It is clear what the tikanga in the area was in relation to succession of whāngai; that they couldn’t succeed to those lands. But is that the tikanga everywhere or is it changing so we need expert advice on these issues? Because as we talked about earlier tikanga is different for different areas and we also have issues of how we are adapting tikanga to changing circumstances. What might have happened in the past no longer fits with our modern notions. A classic example is notice to owners. So many people have email, listen to radio or television and they don’t necessarily read the public notices in the newspapers, and lots of people aren’t living in the area where their land is. How do you include all those people and at the same time, weigh up the different interests? They have a different view and perspective from those who are on the land, who are often owner/shareholders. The last thing I would like to say is that we are dealing with an imposed system in terms of our landholding. I was sitting in court one day when one of the applicants in talking to his whanaunga was saying ‘look you keep talking about majorities and so forth, all this share stuff has been imposed on us anyway but we’re stuck with it and let’s get on with it because I’ve got better things to do!’

oPen Discussion

Question: I hear you say you want whānau to work out their differences before they come to court and as a last resort you will hand down a judgment only if you have to. So what sorts of things do you think that we should bring to the court to seek judgment on?

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Response: That’s usually easy to tell. You ask them to have a meeting amongst themselves and they come back and either they have an answer or it’s just the same argument again. You know when they have gotten as far as they can on an issue.

Question: What sort of practical support do you offer at the courts now when the people can’t reach a resolution for themselves? What kind of support do you give them?

Response: There are various stages that we look at. One is where we ask them to go away and hold their own meeting. That often works. Sometimes the situation has gotten to the point where it’s obvious that they can’t move on from where they are because there is just too much raruraru [trouble]. So the court will organize a meeting and provide a facilitator from a member of the court staff to chair the meeting who will provide information about the court processes and also take notes, take attendances and so forth. I haven’t myself done this but the Chief Judge has also offered to be a mediator in some situations and I think other judges have offered. So rather than have a court officer holding the meeting the judges themselves may offer to mediate. Sometimes it works and sometimes it doesn’t. That’s about all that we have got on offer at the moment.

Question: Can I ask you, why is it necessary to bring tikanga Māori into the Māori Land Court? It is an extremely dangerous thing to do. The Māori Land Court redefined us, re-ordered us, restructured us and my fear is that when we appoint experts, some of those experts are pretty doubtful. Why do we have to do that? Do you have reservations about taking our tikanga into the Māori Land Court? Do you ever wonder what might happen to our tikanga?

Response: I do have great reservations about taking tikanga into the court. In some respects it’s easier for me to say, ‘This is the law. This is the Act. This is what my jurisdiction is. I can’t do what you’re asking because the Act doesn’t allow me to. Therefore this is what the answer is.’ It is easier for me as a Judge to rely on the law to say this is how it’s going to be. That’s what I do. Depending on the situation, sometimes it’s very hard to know what the tikanga is in many ways, because there are competing principles. So, I agree with you. It is very difficult and very dangerous but the fact is, it comes in through the door because the people who come into the courts bring it with them. And then it’s a matter of the court accepting it and trying to demonstrate that this is the law, here’s your situation. I can’t always throw it back to them for them to go away and try and figure out a solution for themselves. I think that the only safe way for the court, structured the way it is and set up the

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way it is can operate safely. Then when people come saying they can’t find a solution for themselves, I’m relieved that there is a law there to say this is how it’s going to be.

Question: I wanted to ask you, do you actually believe that the coloniser’s law, the coloniser’s institutions have a place in our lives. If you believe so, can you tell us why you believe it, if you don’t believe so, can you tell us why not and tell us exactly what it is you are doing?

Response: That’s a really curly question. I have to be honest and say that yes I do think that the colonizer’s law does have a place in our lives. Apart from the fact that if you break the law by being civilly disobedient, specifically you are going to be arrested and dealt with by the coloniser’s law. I know that there is the political stance that needs to be taken which says ‘this is the coloniser’s law, we’re operating under tikanga Māori’. At the same time there is a very practical side of it that certain penalties will be imposed. That’s in the general courts. I think you need to be able to do both. At the moment we are required to do both. For the Māori Land Court the fact is, just to use an example, I said that things like shareholdings, voting, majorities, are part of an imposed system. However for people like my mother, she views the shareholding system as a connection to her father, a reason for her being able to go back to her land. We have invested that imposed system with a symbolic meaning, a spiritual meaning. I’m not sure how to answer that question. It’s just that for me having to deal with it, it’s a reality.

Response (from a kuia from the floor): I don’t have a question. It is an answer. You’ve been put into a corner and I thank you. It is very important that they have a choice of one or the other. And you being the Māori, you must know what is one and what is the other and where you can be flexible and where you can’t be flexible. To me that question was full of anger. Because it put you into a position where you had to make a decision and it’s not you that makes the decision it’s the people.

Question: I was just thinking as an 18 year old when I worked in the Māori Land Court, in those days there were no women judges. I can remember being told by one of the tupuna who came in to ask for his take, when he saw me opening the list of owners he was absolutely horrified that I was allowed to touch the list of owners of other people from other tribes. I said to him, take me in to a corner and do a karakia over me. But this is my work, I have to do it. He did that. He did a karakia over me and 41 years in the government, I’m still here. The crux of my kōrero to help them is that I learnt that the role of the Māori Land Court is an advocational one. The role of the District Court is an adversarial one. That’s my answering you. Don’t let yourself get caught up in their take [issues], just put the ball back into their court.