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Heath, Hon Justice Paul --- ""One law for all" - problems in applying Maori Custom law in a unitary state" [2011] NZYbkNZJur 15; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 194

Last Updated: 25 April 2015

“ONE LAW FOR ALL” – PROBLEMS IN APPLYING

MāORI CUSTOM LAW IN A UNITARY STATE¹

THE HON JUSTICE PAUL HEATH

I. INTRODUCTION

I swear that I will well and truly serve Her Majesty, Her heirs and successors, according to law, in the office of ; and I will do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will. So help me God.²

The judicial oath requires a Judge to do right to all people “after the laws and usages of New Zealand”, without fear or favour, affection or ill will. It is inherent in the oath that the Judge will treat Māori, Pākehā and other ethnic groups equally, applying both laws and “usages” of New Zealand. When considering if it is permissible to apply Māori custom in any given setting, the Judge must consider whether it is a “usage” properly to be applied as part of the law of New Zealand.

In determining that question, a Judge must remember that there is as much a “Māori law” as there is a “Māori language”.³ The sense of identity that leads to that proposition is reflected in the whakataukī.

E kore au e ngaro

He kākano i ruia mai i Rangiātea⁴

In 1840, in a communication from the British Government to Governor Hobson, the Governor was instructed to recognise the customs developed by Māori:⁵

1 I acknowledge with gratitude the considerable assistance provided by Blair Keown, Judges’ Clerk, High Court Auckland, in the preparation of this paper. I have also drawn extensively, not always with attribution, from New Zealand Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9 2001), to which I was a party.

2 The judicial oath. Section 18, Oaths and Declarations Act 1957. The oath, in this form,

was first taken in New Zealand in 1873 in accordance with s 4 of the Promissory Oaths Act

1873.

3 Durie “Will The Settlors Settle? Cultural Conciliation and Law” (1996) 8 Otago Law Review

449 at 451.

4 I will never be lost for I am a seed sown from Rangiātea.

5 Dispatch from Lord John Russell to Governor Hobson, 9 December 1840 (1841) 311 New Zealand Parliamentary Papers 24 cited in Frame “Colonising Attitudes Towards Maori Custom” (1981) NZLJ 105 at 105-106. Emphasis added.

[The Māori people] have established by their own customs a division and appropriation of the soil ... with usages having the character and authority of law ... it will of course be the duty of the protectors to make themselves conversant with these native customs ...

I suggest that it is no coincidence that the word “usages” also appears in the judicial oath.

Section 71 of the New Zealand Constitution Act 1852 provided:

And whereas it may be expedient that the Laws, Customs, and Usages of the aboriginal or native Inhabitants of New Zealand, so far as they are not repugnant to the general Principles of Humanity, should for the present be maintained for the Government of themselves, in all their Relations to and Dealings with each other, and that particular Districts should be set apart within which such Laws, Customs, or Usages should be so observed:

It shall be lawful for Her Majesty ... from Time to Time to make Provision for the Purposes aforesaid, any Repugnancy of any such native Laws, Customs, or Usages to the Law of England, or to any Law, Statute, or Usage in force in New Zealand, or in any Part thereof, in anywise notwithstanding.

However, this section was never used. It was repealed on enactment of the Constitution Act 1986. No districts were “set aside” in terms of s 71 notwithstanding the efforts of those associated with, among others, the Kīngitanga movement.⁶

Notwithstanding the promising start to the recognition of Māori customs at the beginning of European settlement, those responsible for governing the Colony after the Treaty of Waitangi was signed quickly acted to dispel the notion that Māori custom and British sovereignty could coalesce. A clear example of the growing denial of Māori custom law is found in Prendergast CJ’s judgment in Wi Parata v The Bishop of Wellington.⁷ The Chief Justice said:⁸

... Had any body of law or custom, capable of being understood and administered by the Courts of a civilised country, been known to exist, the British Government would surely have provided for its recognition, since nothing could exceed the anxiety displayed to infringe no just right of the aborigines. ...

_...

6 Joseph “Colonial Biculturalism? The Recognition & Denial of Māori Custom in the Colonial & Post-Colonial Legal System of Aotearoa/New Zealand” Paper presented to Te Mātāhauariki Research Institute, University of Waikato FRST Project, 1998 at 2 (abstract).

7 Wi Parata v Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur (NS) 72.

8 Ibid at 77-78 and 79-80.

Whatever may be meant by the phrase “the persons or property, whether real or personal, of the Māori people,” the next following words, “and touching the title,” [etc] can only signify that the Court is enabled and required to entertain and determine questions of native title. The [Native Rights Act 1865] speaks further on of the “Ancient Custom and Usage of the Māori people,” as if some such body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being. As we have shown, the proceedings of the British Government and the legislation of the colony have at all times been practically based on the contrary supposition, that no such body of law existed; and herein have been in entire accordance with good sense and indubitable facts. ...

... If, therefore, the contention of the plaintiff in the present case be correct, the Native Lands Court, guided only by “The Ancient Custom and Usage of the Māori people, so far as the same can be ascertained,” is constituted the sole and unappealable judge of the validity of every title in the country.

Fortunately we are not bound to affirm so startling a conclusion. The Crown, not being named in the statute, is clearly not bound by it; as the Act, if it bound the Crown, would deprive it of a prerogative right, that namely of conclusively determining when the native title has been duly extinguished ...

The Law Commission described the eclipse of Māori custom law:⁹

A number of factors combined to ensure that the systems of introduced laws and settler policies were geared towards the eclipse of Māori custom law. These included:

a) the belief that English institutions and culture were innately superior,

and it was in the best interests of Māori to assimilate;

b) the desire to create an ideal English society in New Zealand;

c) the introduction of English laws and internalising colonial values; and d) the settlers’ desire for land resulting in land alienation from Māori.

That is the background against which it is necessary to consider what place Māori custom law continues to have (or should have) within the New Zealand judicial system.

9. New Zealand Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9 2001) at 22, para 97.

ii. PARLIAMENTARY SOVEREIGNTY AND THE COMMON LAW

The concept of Parliamentary sovereignty¹⁰ means that common law development by the Court cannot conflict with the law as stated in a statute. But there appears no impediment to the development, as part of New Zealand common law, of principles that rely on Māori custom, provided they are capable of being readily identified and applied in a predictable manner. Any person ought to be permitted to organise his or her affairs in the shadow of the law; meaning that the known law is used as the framework by which the affairs are ordered. And, to do so, the terms of the law must be readily accessible.

In the criminal law there are limited opportunities to apply custom. All offences are identified by statute. The Courts that have jurisdiction in criminal proceedings and the procedures they are obliged to follow are both prescribed by statute. Those procedures recognise an adversarial contest where witnesses are challenged through cross-examination by a lawyer representing the opposing party. That procedure is inherently inconsistent with the nature of tikanga Māori.

There is room in the sentencing process to pay greater heed to cultural considerations. These will be discussed later, but include the ability to request that a person be heard on cultural or whanau issues,¹¹ the requirement for a Court to take account of any “offer of amends”¹² made by the offender, the possibility of the use of a restorative justice process designed to enable offender and victims to redress the wrong committed and the ability to adjourn sentencing for significant periods to permit agreed responses to be carried out by the offender.¹³

From a civil law perspective there is greater scope to apply custom. First, there is the possibility of custom being incorporated as part of a “New Zealand common law”. As more Pākehā embrace Māori culture as part of their New Zealand identity, the prospects of incorporating Māori customary practices grow. A generational shift is taking place and it may be, as a generation of Pākehā more informed about Māori history and customs grow into positions of responsibility, that the best of both the Māori and Pākehā worlds can be synthesised in creating a common law that is consistent with statutory overlay. Second, there is the ability for all citizens to refer their disputes to mediation or arbitration. Where Māori parties are involved there is no reason why appropriate tikanga cannot be chosen as the method of resolving disputes.

10 Now enshrined in s 3(2) of the Supreme Court Act 2003.

11 Sentencing Act 2002, s 27.

12 Ibid, s 10.

13 Ibid, s 25.

In contrast to the existing judicial framework (save to the extent I have identified), Māori custom law and the values which inform it serve a fundamentally different purpose and come from a different philosophical base from the laws developed since colonial government began. For the purposes of this paper, I rely broadly on tikanga Māori as a basis of Māori custom law.¹⁴

In 2002, after consultation with Māori, the Law Commission expressed central values that underpin the totality of tikanga Māori:¹⁵

• Whanaungatanga – primarily this denotes the relationships between people bonded by blood, and the rights and obligations that follow from the individual’s place in the collective group.¹⁶

• Mana – encompasses political power, as well as authority, control,

influence and prestige.¹⁷

• Tapu – seen as part of a code for social conduct based upon keeping safe and avoiding risk, as well as protecting the sanctity of revered persons and traditional values.¹⁸

• Utu – relates to the concept of reciprocity in order to maintain relationships between people.¹⁹

• Kaitiakitanga – relates to the notion of stewardship and protection,

often used in relation to natural resources.²⁰

The Commission recognised that each iwi applies variations of those values to inform their particular tikanga. Furthermore, any attempt to define tikanga must take account of tikanga tangata (social organisation), tikanga rangatira (leadership) and tikanga whenua (connections to the land).²¹ The Commission also referred to whakataukī as illustrative of tikanga.²²

14 Although I accept the salutary caution sounded by Dame Joan Metge in directly equating tikanga with Māori custom law in New Zealand Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9 2001) at 2.

15 New Zealand Law Commission Treaty of Waitangi Claims: Addressing the Post-Settlement

Phase (NZLC SP13 2002) at 9, para 42.

16 Discussed in New Zealand Law Commission Maori Custom and Values in New Zealand

Law (NZLC SP9 2001), paras 130-136.

17 Ibid, paras 137-149.

18 Ibid, paras 150-155.

19 Ibid, paras 156-162.

20 Ibid, paras 163-166.

21 New Zealand Law Commission Treaty of Waitangi Claims: Addressing the Post Settlement

Phase (NZLC SP13 2002) at 9, paras 42 and 43.

22 Ibid, at 9-10, paras 44-48.

Translated into the context of a dispute resolution process, tikanga Māori has no winner or loser. Nor are the relevant parties restricted to those immediately interested individuals that are accorded standing in common law legal systems. Consistent with this deeper focus, the ultimate aim of a tikanga-based dispute resolution mechanism is the maintenance and restoration of balance. Balance is to be assessed in a broad and qualitative manner.

Tikanga Māori aligns more closely with an inquisitorial model of dispute resolution where every party seeks to achieve a common and mutually beneficial goal. As a general construct, this is fundamentally at odds with the adversarial system.

This is not to suggest that there is no common ground between the two systems. Indeed, when identifying the content of the law, both have a conception of precedent. The existing judicial system relies on a written tradition. The tradition of tikanga Māori is oral. In this respect, Māori custom law and the existing common law are not fundamentally different.²³ While the values that inform it are different, their overriding function (as representing the practices of the community) is identical. Where Parliament permits (or does not prohibit) the development of common law, there is scope in theory for the development of substantive law which fuses European values and tikanga Māori.

There appear to be two principal means by which Māori custom law could be worked into the judicial system. First, the entire judicial system could be overhauled, and either parallel systems of adjudication developed or a system of adjudication developed which takes equal account of Māori custom and “European” values. Second, the existing framework could be modified, thereby permitting Māori concepts and custom to operate where appropriate.

The former option is inherently unlikely given the significant paradigm shift and attendant costs that an entirely new system would occasion. It is inconsistent with the Crown’s position that Māori gave up the right to develop their own system of law with the cession of sovereignty under Article One of the English version of the Treaty of Waitangi. It is also at odds with the practical need for New Zealand law to deal fairly with all New Zealanders, whose ethnic origins have become more varied in recent years.

_{The Law Commission has opined that such an approach is unnecessary:}²⁴

23 Though the oral tradition of Māori is more dynamic and fluid than the written English

tradition which emphasises certainty.

24 New Zealand Law Commission Justice: The Experiences of Māori Women (NZLC R53

1999) at 120, para 424.

Māori autonomy is not an outcome which requires Māori and non-Māori to live in separate worlds, or which permits the existence of separate legal systems or encourages defiance of the law. The future of New Zealand must lie in a single legal system which nevertheless recognises and respects Māori values, tikanga and aspirations. Indeed the common law principle of aboriginal rights already requires enforcement by the courts of such rights in the mainstream of that single legal system.

The second option, in addition to being more attractive from a resource point of view, seems to be the only option that is politically acceptable. While this could be seen as consigning Māori custom and values to a gap-filling role,²⁵ I am more sanguine about the prospects of producing a more substantive solution.

Blair Keown’s view is that, at the level of legal process, Māori custom will be taken into account where the associated trade-off is not too great. At the level of legal content, he considers that this trade-off is not as apparent and that practical rather than theoretical difficulties hinder progress into a truly integrated common law.

I do not disagree with those underlying themes. However, I am, perhaps, more optimistic about the future.

I see greater numbers of Pākehā New Zealanders interested in issues Māori, in learning te reo and in educating themselves about customary practices. I see people born from the late 1970s striving to find identity as a New Zealander that is distinct from values derived from Britain. The increasing number of migrants from different countries has added to that. Many have, in my experience, made real efforts to learn about te ao Māori once decisions to settle in this country have been made. As time goes on, I have no doubt that a wider range of New Zealanders will embrace many Māori traditions, something that could lead to the development of a common law which will encompass cultural practices accepted by many more New Zealanders than is currently the case.

III.  MāORI CUSTOM LAW IN JUDICIAL PROCESS

At present, there is an institutional reluctance to depart from the adversarial system of justice. This reluctance is particularly acute in the context of criminal prosecutions where the adversarial process is considered integral to the notion of a fair trial. Outside of this realm there is more scope for the development

25 See Keown, “Ownership, Kaitiakitanga and Rangatiratanga in Aotearoa/New Zealand” (2006) 2 Journal of Māori Legal Writing 64.

of inquisitorial style processes. A number of statutory developments have done precisely that.²⁶ Yet such changes sit uneasily with the constitutional conception of the Courts as objective arbiters:²⁷

Inevitably, the investigatory function of the “court” would break down the doctrine of separation of powers and result in appellate courts becoming part of the executive branch of the State, as they effectively are in many jurisdictions that reject the adversary system of justice.

Any alteration to the existing process to take account of Māori custom will meet resistance where the criminal adversarial system is threatened. A fundamental question is whether, without overhauling the present criminal justice system completely or creating a system that provides different laws for different classes of New Zealanders, there is room for tikanga in the criminal arena.

In my view, New Zealanders generally will not accept a system whereby different laws are applied to different classes of people. If any suggestion were to threaten the existence of New Zealand as a multi-cultural society, that proposal is likely to top the list. It is an idea which overlooks the interaction that necessarily occurs between different ethnic groups; if there are laws for Māori and other laws for other New Zealanders, what happens when the two collide? Which law prevails? Indeed, how can two legal systems founded on race and culture be justified on a principled basis?

Nevertheless, there are considerable advantages in having legal processes based on Māori custom law. It gives Māori ownership of a system with which they are more likely to identify,²⁸ accords with Treaty principles of participation and partnership,²⁹ complies with Article Two of the Māori version of the Treaty and contributes to a genuine sense of cultural identity.³⁰ Given the regrettable

26 See for example the establishment of the Employment Relations Authority under the

Employment Relations Act 2000 commented on in Claydon v Attorney-General [2002] 1

NZLR 130 (HC) at [16]. See also family law processes under the Guardianship Act 1968 and the Care of Children Act 2004. The former was the subject of consideration in Y v X [2003] 3 NZLR 261(HC) at [58].

27 Gipp v R (1998) 155 ALR 15 (HCA) at [55] per McHugh and Hayne JJ.

28 New Zealand Māori Council and Durie Hall “Restorative Justice: A Māori Perspective” in

Bowen & Consedine (eds) Restorative Justice: Contemporary Themes And Practice (1999)

25 at 28.

29 New Zealand Law Commission Justice: The Experiences of Māori Women (NZLC R53

1999) at 6.

30 New Zealand Law Commission Justice: The Experiences of Māori Women (NZLC R53

1999) at 8.

fact that Māori represent a significant proportion of those involved in the criminal justice system,³¹ the case for greater Māori input into legal process is compelling.

There are a number of processes based on Māori custom law which do not pose a threat to the adversarial criminal justice system. The ability to address the Court in Māori,³² of kaumatua to address the Court in a pre-trial proceeding,³³ and the wider acceptance of Māori protocol in Court proceedings have no substantive impact on the adversarial contest. By and large such practices are permitted to occur in Court.

A recent example from the High Court occurred early in 2007 at the conclusion of an intra-family rape trial.³⁴ Upon the guilty verdicts being delivered, the victim’s family rose and delivered a challenge in te reo to the prisoner. Registry staff immediately leapt to their feet to quell the disturbance. One member of the Court staff calmly explained the purpose of the process and the cathartic effect it would have on the family. The Judge permitted it to continue.

Extending purely procedural involvement to Māori without anything further risks criticism on the grounds of paying lip service to Māori custom by permitting input where it is easy. The true acid test lies in the extent to which the adversarial parts of the criminal justice system (the trial phase) can accommodate Māori customs and values.

Moana Jackson has mounted a strong argument in favour of Māori custom playing a greater role in legal process.³⁵ In his report to the then Department of Justice, the author critically examined the various institutions of the legal system as they impact upon Māori. Among his many recommendations was a call for a parallel criminal justice system for Māori:³⁶

31 In 2004 47 per cent of convictions for violent offences and 43 per cent of all convictions were attributed to Māori. This compares with 38 and 45 per cent respectively for New Zealand Europeans. See Soboleva, Kazakova & Chong Conviction and Sentencing of Offenders in New Zealand 1996 to 2005 (December 2006) at 54. Given that the Māori population is projected to reach 810,000 by 2026, this presents a formidable problem. See Statistics New Zealand National Ethnic Population Projections 2006 (base) – 2026 update. Available at http://www.stats.govt.nz/browse_for_stats/population/estimates_and_projections/ NationalEthnicPopulationProjections_HOTP2006-26.aspx (last accessed 7 November 2011).

32 Section 4, Māori Language Act 1987.

33 Police v Taurua [2002] DCR 306 (DC).

34 For the sentencing notes see R v Shepherd (HC Auckland, CRI 2005-090-000950, 28

February 2007, Andrews J).

35 Jackson The Māori and the Criminal Justice System Part Two (November 1988).

36 Ibid, at 277-278.

The aim of a Māori system would not be to simply transplant the Pākehā organisation into a Māori context, but to develop a structural framework which reflects the imperatives of Māori law and the processes it developed for maintaining order. The runanga concept consisting of selected people rather like the committees envisaged under the reform of the Māori Community Development Act would be one obvious structure. The idea of a panel rather than an individual is important as it would stress the community responsibility to remedy wrongs committed against it. However ... runanga would have power and authority to hear and determine all cases involving offenders and victims who identify as Māori. The attribution of guilt or innocence and the determination of reparation or other sanction would be within its jurisdiction. If a victim was non-Māori, or an institution as distinct from a person, jurisdiction would be varied in the sense that the victim would have the right to have the matter heard within the Māori system or referred to Pākehā courts.

Once the alleged wrongdoer and his whanau met with the runanga, the aim of the hearing would also be quite different. Under Pākehā notions of criminal jurisprudence, the objectives are to establish fault or guilt and then to punish. The sentencing goals of retribution, revenge, deterrence, and isolation of the offender are extremely important, although the system often pays lip service to the idea of rehabilitation as well. A Māori system would endeavour to seek a realignment of those goals to ensure restitution and compensation rather than retribution; to mediate the case to everyone’s satisfaction rather than simply punish. Of course, sanction to express community disapproval would necessarily be a part of the process, but the method and type of sanction would be shaped by traditions other than the need to further alienate an offender from his community. Implicit in the process of mediation is concern for the victim and the victim’s whanau. While the redress and restitution available would be defined according to each offence, the [aggrieved] whanau would have the right to contribute to its determination in any particular case. The end result would be a settlement and sanction that would not necessarily be any more harsh or lenient than those imposed by the Pākehā system, although the method of its imposition and fulfilment by the defendant would clearly be different.

As Jackson acknowledges, there is little obstacle to a parallel system where: ³⁷

(1) the offender is Māori; (2) the victim is Māori; and

(3) there is no dispute as to guilt.

In such circumstances the system operates for the sole purpose of formulating a response to the proven offence. The adversarial phase of the criminal justice system is bypassed. Guilt having been determined, the underlying need for an

37 Ibid, at 217.

adversarial process is removed. Necessarily, the sentencing process is more inquisitorial in nature; it is for the Judge to impose an appropriate sentence to reflect the seriousness of the offending and the wrongs done to the victims and the community generally. Further, at least since passage of the Sentencing Act, the ability to sentence in a manner that reflects cultural background has been recognised.

One important point, however, is the need to bear in mind that serious criminal conduct (eg sexual violation, wounding with intent to cause grievous bodily harm, manslaughter and murder) are offences to which important sentencing goals of accountability,³⁸ denunciation³⁹ and deterrence⁴⁰ must apply. There is less room for more lenient sentences to be imposed for serious offending through operation of a parallel sentencing regime that lacks institutional safeguards. Consistency is important.

The availability of Māori-focused restorative justice programmes⁴¹ demonstrates the digestibility of Māori custom in this area and an initial acceptance that the trade-off to the adversarial system in these circumstances is not too great. Section 10 of the Sentencing Act 2002 provides a direct legislative pathway for muru⁴² or ifoga⁴³ to be accorded judicial recognition by permitting a Court to take offers of amends into account at sentencing. The Māori Community Development Act 1962 permits Māori committees to impose penalties on Māori for certain conduct falling within the Summary Offences Act 1981. The Children Young Persons and Their Families Act 1989 provides for family group conferences to address youth offending which can be held on marae, with Māori facilitators and kaumatua present.

38 Section 7(1)(a), Sentencing Act 2002.

39 Section 7(1)(e), Sentencing Act 2002.

40 Section 7(1)(f), Sentencing Act 2002.

41 See for example, Te Whanau Awhina referred to in Maxwell and Hayes “Restorative Justice Developments in the Pacific Region: A Comprehensive Survey” (2006) 9(2) Contemporary Justice Review 127 at 131-133 Available at ips.ac.nz/events/downloads/PacificCJR.G%20

Maxwell.pdf (last accessed 7 November 2011) and Tomas & Quince “Māori Disputes and their Resolution” in Peter Spiller (ed) Dispute Resolution in New Zealand (Oxford University Press, Auckland, 1999) 205 at 225-226; and Te Oritenga referred to in Quinn and Bowen “Restorative justice in New Zealand” in (1997) 486 Lawtalk 34 at 35-36.

42 The taking of personal property as compensation for an offence against an individual, community or society. For a general discussion of muru see Ministry of Justice He Hinatore ki te Ao Maori – A Glimpse into the Maori World: Maori Perspectives on Justice (Ministry of Justice, Wellington, 2001) at 75-79. For an historical account of muru see Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, 2003) at 151-164.

43 A ceremony in which an apology in the Samoan way is offered. For an in-depth discussion

of ifoga see Tuala-Warren “A Study in Ifoga: Samoa’s Answer to Dispute Healing” (2004)

4 Te Matahauariki Institute Occasional Paper Series.

However, institutional acceptance has its limits. Restorative justice mechanisms that incorporate Māori custom are generally restricted to either youth offenders or relatively minor offences. That is consistent with the notion that the more serious the offending the greater the public interest in subjecting offenders to the generic sentencing process. The more serious the offending, the more difficult it is to make a case for a parallel sentencing process relevant only to one sector of the community.

This response is reflected in the attitude of the High Court and the Court of Appeal, at the level of serious offending, to both Māori restorative justice measures and Samoan practices of ifoga. While the Courts have been willing to treat a concluded hui at which a full apology was proffered⁴⁴ and an accepted ifoga⁴⁵ as a mitigating factor at sentencing, they have rejected both as representing a complete punishment. In Talataina, the Court of Appeal expressed itself as follows:⁴⁶

... The law of New Zealand must be administered in the interests of our society as a whole. The Court must therefore give weight to the difference in the emphasis that this society places on certain types of conduct, perhaps on sexual crimes in particular.

I have touched on the difficulties inherent in devising a parallel criminal trial system. According to tikanga, where liability was denied, investigation into crimes would be conducted openly by iwi and hapū. Offenders could defend themselves and call witnesses. From this dialogue of accusation and investigation⁴⁷ would come a decision. Penalties were delivered quickly with no right of appeal. Would all Māori charged with offences be prepared to accept such a diminution of rights afforded by the New Zealand Bill of Rights Act

1990⁴⁸ or the procedural safeguards of an adversarial system?

Judges have not been prepared to permit custom law to intrude into a trial process; for example, a case involving the rejection of a request for a jury comprising six Māori and six Pākehā members,⁴⁹ an application for a father to defend his son in accordance with Māori custom,⁵⁰ an application for a trial to take place on the accused’s marae,⁵¹ and, more drastically, an application

44 R v P (HC Auckland CRI 2005-063-1213 9 August 2006 Priestley J).

45 R v Maposua (CA131/04 3 September 2004); R v Talataina (1991) 7 CRNZ 33 (CA).

46 R v Talataina (1991) 7 CRNZ 33 (CA) at 36.

47 Known as whakawa.

48 For example, the right to a fair trial and the need for a Court to comply with the principles of natural justice: see ss 25 and 27, New Zealand Bill of Rights Act 1990.

49 R v Pairama (1995) 13 CRNZ 496 (HC).

50 Ibid.

51 Rameka v Police [2000] DCR 166 (DC); Clarke v Police (DC Kaitaia, CRN 5029004943,

15 March 1996, Judge MF Hobbs).

for the applicant to be tried by her own people in accordance with tikanga.⁵²

The more general attack on the jurisdiction of “Pākehā” Courts has also

(necessarily) been roundly rejected.⁵³

In the civil context, there is more room to accommodate cultural needs where the parties share a cultural identity. It is open to parties to a civil dispute to resolve their conflict outside of the State-provided Court system.⁵⁴

By way of example, I have conducted a sitting of the High Court at Maungarei Marae. As one participant has put this sitting into the public domain (by letter to the Editor of the New Zealand Herald) I can give some detail of what occurred. There have been disputes over the governance of a trust involved in making Treaty claims on behalf of an iwi. There are disputes between hapū affiliated to different marae over who should be trustees of the trust.

This was not a readily justiciable issue. I said I would hold a settlement conference on the marae to see if resolution could occur in that setting. As one would expect, a full and frank exchange of views ensued, though in the nature of things it was difficult (and proved impossible) to enforce the usual restriction on general publication of what occurred at a settlement conference. Plainly, once the people participated word spread of what occurred.

Settlement was not reached but I was left with the impression that each side

understood the other’s position better.

On a similar note, the Law Commission’s proposal for re-establishing tribal organisations for Treaty settlement purposes through a specifically tailored Māori entity represents a positive step in the direction of Māori customary process.⁵⁵ The requirement that disputes within the entity be subject to an

52 R v Knowles (CA146/98 12 October 1998).

53 For example, see R v Mitchell (CA68/04, 23 August 2004) and Barrett v Police (HC Hamilton, CRI 2003-419-64, 14 June 2004, Randerson J).

54 For example, Arbitration (Arbitration Act 1996) and the process of mediation, through which an independent facilitator assists the parties to reach resolution.

55 This proposal was first mooted in New Zealand Law Commission Treaty of Waitangi Claims: Addressing the Post Settlement Phase (NZLC SP13 2002) and developed under the leadership of Hon ET Durie in New Zealand Law Commission Waka Umanga: A Proposed Law for Māori Governance Entities (NZLC R92 2006).

internal dispute resolution mechanism,⁵⁶ coupled with the emphasis on Māori autonomy,⁵⁷ suggests that there is scope for yet greater inroads to be made into the civil adversarial system.

The Waka Umanga proposal progressed in Parliament only to the Committee stages;⁵⁸ however, it at least provides a blueprint for how the development of autonomous systems of customary dispute resolution can be undertaken.

The one remaining difficulty in the civil context concerns the amenability of disputes, involving Māori as one party and non-Māori as the other, to resolution according to tikanga.⁵⁹ At present it seems inconceivable that a civil dispute in these circumstances could, ordinarily, be resolved in this manner. The interests of certainty would prevent the Court from countenancing the possibility.

At the same time, there is nothing to prevent parties, particularly in the context of commercial relationships, from regulating that relationship according to a contract which submits all disputes to resolution according to tikanga. Certainty and institutional respect for freedom of contract would prove unlikely allies for Māori custom in this area. The necessary consequence is that the existence of tikanga and Māori customary process would become entirely dependent on recognition by a “common law” construct – the contract.

56 New Zealand Law Commission Waka Umanga: A Proposed Law for Māori Governance Entities (NZLC R92 2006) at 17. One possibility ventilated by the Law Commission was the appointment of a kairongomau (peace-maker) who would act in a similar way to an ombudsman.

57 New Zealand Law Commission Waka Umanga: A Proposed Law for Māori Governance

Entities (NZLC R92 2006) at 67-68.

58 See the Waka Umanga (Māori Corporations) Bill, introduced on 21 November 2007 and reported back from the Maori Affairs Select Committee 8 September 2008; also Hon Taihakurei Durie’s paper in this volume. The text of the bill as introduced is available at www.legislation.govt.nz/bill/government/2007/0175/8.0/DLM1057730.html, and the amended version reported by the Select Committee can be found at www.legislation.govt. nz/bill/government/2007/0175/latest/DLM1057730.html.

59 Initially disputes between Māori and early settlers were resolved on Māori terms. See for

example Paul Moon and Peter Biggs The Treaty and its Times (Resource Books, Auckland,

2004) at 55; Alan Ward An Unsettled History: Treaty Claims in New Zealand Today (Bridget Williams Books, Wellington, 1999) at 9; and Paul McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Auckland, 1991) at 83.

iV. some cLosing obserVAtions

Outside the ambit of a restrictive statute, custom law can play a meaningful role. After all, custom has historically been a basis of law for all people: the common law reflects society’s common customs and values. As the author of Salmond on Jurisprudence records:⁶⁰

It was long the received theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law, or the unwritten, common, or customary law. Judicial precedent was not conceived as being itself a legal source of law at all, for it was held to operate only as evidence of those customs from which the common law proceeded....

Even now custom has not wholly lost its law-creating efficacy. It is still to be accounted one of the legal sources of the law of England, along with legislation and precedent, but far below them in importance.

In a modern context, custom law can provide the content of standards, like due care and reasonableness, used in areas in which the variety of circumstances and competing policies are such that no set of general rules is likely to be satisfactory or even workable.⁶¹ It can supply the basis for the implication of a term into a contract.⁶² It can provide the basis of title in land.⁶³ It can assist in the definition of a statutory concept.⁶⁴ It can form the basis of fishing rights.⁶⁵ The common theme running through each of these functions is that all are of a gap-filling nature. The logical implication is that custom law cannot stand alone as an outlying source of law. It must be accommodated within the existing legal framework.

There appears to be no reason why Māori custom cannot fulfil similar roles. In practice, however, the judiciary has been more circumspect. The notion that custom law must accommodate the existing legal framework appears to have manifested itself in a judicial tendency to either err on the side of not giving full recognition to custom or to look to Parliament to resolve any uncertainty.

In New Zealand, as in England, a lawfully recognisable custom must possess four essential attributes:⁶⁶

60 PJ Fitzgerald (ed) Salmond on Jurisprudence (12ed, Sweet and Maxwell, London, 1966)

at 189-190.

61 RM Unger Law in Modern Society (Free Press, New York, 1976) at 55.

62 See Engineering Dynamics Ltd v Norgren Martonair (NZ) Ltd [1996] NZCA 427; (1996) 7 TCLR 369 (CA).

63 See Attorney-General v Ngati-Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

64 For example, the meaning of kaitiakitanga under s 7, Resource Management Act 1991.

65 See Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 (HC).

66 Knowles v Police (1998) 15 CRNZ 423 (HC) at 426. See also R v Iti (CA267/06 4 April

2007) at [47].

It must be immemorial; it must be reasonable; it must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain, and the persons to whom it is alleged to affect; and it must have continued without interruption since its immemorial origin. The custom must be clearly proved to exist, and the burden of proof is on the proponent.

These four requirements impose significant constraints upon the recognition of custom. They also throw up a number of practical difficulties. How long is immemorial? Against what culture’s standard of reasonableness is the custom to be assessed? Will a custom, given its dynamic and fluid nature, ever be certain? Does the custom have to be practised in a completely unchanged and static manner?

The tendency to subject custom to such tight and yet vague legal controls⁶⁷ reflects an institutional unwillingness to “let go” and forgo any substantive control over customary law. As Hammond J, delivering the judgment of the Court of Appeal, recently stated in R v Iti:⁶⁸

There has to be some ability to limit rights based on aboriginal custom, as occurs in other rights-based areas of the law, where necessary, otherwise some features of Māori custom which would today be considered untenable might be enabled to continue unabated.

This timidity is evident in decisions of the High Court and Court of Appeal concerning customary adoption,⁶⁹ the ability of non-Māori to inherit Māori land,⁷⁰ and the ability of whāngai to inherit from a deceased’s estate.⁷¹ It is, however, understandable.

First, Māori custom law is not easily reconciled with the existing framework. The former comprises a plethora of norms which enables participants to call upon those which best fit the moment. The latter centres upon single rules which are of general application. This abundance of norms appears to have troubled Paterson J in Re Walker. In rejecting a submission that a whāngai who has the right under tikanga for maintenance and support should be considered a claimant under the Family Protection Act 1955, his Honour remarked:⁷²

67 However, these four requirements do not appear to have been applied religiously.

68 R v Iti (CA267/06 4 April 2007) at [46].

69 B v Director-General of Social Welfare (1997) 15 FRNZ 501 (HC).

70 Grace v Grace [1994] NZCA 276; (1994) 12 FRNZ 614 (CA).

71 Re Walker [2002] NZHC 258; (2002) 22 FRNZ 11 (HC).

72 Re Walker [2002] NZHC 258; (2002) 22 FRNZ 11 (HC) at [16].

If a whangai is capable of being a child of the deceased for the purposes of s 3, it would, in my view, be necessary for the Court on each application by a whangai to consider the relationship in some detail to determine whether or not the whangai was a person entitled to maintenance and support.

Difficulties are revealed further when the values underpinning a particular custom run contrary to the values that inform the “English” equivalent.⁷³ Put another way, reluctance to apply custom law is at its greatest when the custom and values underpinning it are foreign to the judicial officer who is asked to apply the custom.

Second, it is my view that a critical difficulty facing the judiciary in applying substantive Māori custom law lies in their lack of understanding of Māori culture. How can an accepted custom be proved? And by whom? As the Law Commission lamented in 2001:⁷⁴

Part of the problem today is that judges, through no fault of their own, are being called upon to assess the mores of a society still largely foreign to them.

One facet of this “misunderstanding” is the fact that most of the judiciary are not bilingual. A lack of fluency in Māori becomes problematic when Judges are called upon to consider and apply Māori concepts in statutes. In applying such a concept, a non-bilingual judge must, first, identify the English equivalent and, second, identify the incidents of that concept in terms of English understanding. This two-pronged process divorces the concept from its philosophical and cultural base⁷⁵ and often removes much of its integrity.

Even a completely bilingual Judge must be aware of the broader experiences and the intricate patchwork of relationships from which tikanga stems. An understanding of a concept is incomplete without an awareness of this additional dimension. Judges are often ill-equipped to comprehend the magnitude and depth of what an ostensibly simple Māori concept can encapsulate.

73 See J Zorn and J Care “Barava Tru: Judicial Approaches to the Pleading and Proof of Custom

in the South Pacific” (2002) 51 ICLQ 611, 614.

74 New Zealand Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9 2001) at 4.

75 Tomas “Implementing Kaitiakitanga under the RMA” (1994) 1 NZELR 39.

However, like a lack of fluency in Māori, this is not an incurable defect. Experts can be and often are provided from the relevant hapū or iwi to provide an instructive commentary of a specific concept, practice or custom, how it has evolved and the regional variations or kawa of the particular social group that practises or uses it.⁷⁶

This too involves perceived difficulties. In a speech delivered on 15 April 2004 to the Australasian Law Reform Agencies Conference, former MP Stephen Franks posed a cascade of difficulties in applying substantive custom law in this area. Three are relevant for present purposes:⁷⁷

• How can we test those who claim to know it?

• How can we know they are not just making it up?

• How can we make sure it is not being stated to suit the personal and political interests of those who claim to know it?

These difficulties stem in part from the fact that, in New Zealand, custom is generally not recognised as a free-standing source of law in its own right.⁷⁸ As a result, questions of custom fall to be determined as questions of fact, leaving the Court heavily reliant on the expert witnesses produced by the parties. This is particularly so where there are two competing accounts of custom.

There is a risk that reliance can translate into vulnerability where the adjudicator is not versed in tikanga, te reo or Māori culture. Knowledge of any of these three disciplines provides a basis against which to test the evidence of those who purport to be experts in a particular custom. However, where the contrary applies:⁷⁹

76 Other alternatives identified by the Law Commission include multi-judge panels, customary assessors, reference to a specialist court, and appointment of amicus to assist the Court. See New Zealand Law Commission Converging Currents: Custom and Human Rights in the Pacific (NZLC SP17 2006) at 197-202.

77 Franks “Going Native: What Indigeneity Should Look Like in the Morning” (paper presented to Australasian Law Reform Agencies Conference, Wellington, 15 April 2004) at 2-3. The author identifies three other difficulties, namely: (1) What is it?; (2) Where is it looked up?; and (3) Who knows what it is if it cannot be looked up? Defining custom law and identifying its sources are beyond the scope of this paper. In any event these questions can be answered by, first, accepting tikanga as a basis for Māori custom law and, second, acknowledging that tikanga is transmitted via an oral tradition.

78 As compared to the Cook Islands, Fiji, Kiribati, Marshall Islands, Nauru, Samoa, Solomon Islands, Tokelau, Tuvalu and Vanuatu which all recognise custom law as a source of law in its own right.

79 Durie “Custom Law: Address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 VUWLR 325, 326.

The presentation of generalised opinions by Māori elders and scholars not experienced in legal analysis ... leaves the ultimate interpretation to untrained adjudicators without access to a coherent lego-anthropological text.

Cultural inexperience can have two unwanted consequences. It can result in adjudicators being improperly swayed to an erroneous conclusion on the back of a party’s misuse or manipulation of custom.⁸⁰ Alternatively, and more likely, it can entrench judicial mistrust of custom and foster an unwillingness to be receptive to customary practice.

Finally, the fact that Māori custom, being transmitted orally, is infrequently

written down represents a key challenge to the existing system.

These represent just some of the practical difficulties of application of custom law rooted in a fundamentally different cultural world. Defensiveness is a natural response to an unknown situation. That applies just as equally to Māori who come before the existing Courts as it does to Judges who have little (if any) experience or knowledge of tikanga.

Education and intellectual flexibility are key allies in the challenge to apply custom. Greater understanding is likely to breed confidence. With education, understanding and confidence on the part of all participants, it may be possible to find a significant place for Māori within the New Zealand judicial system. But it will be a significant challenge to do so.

80 For an example of custom being used for an improper motive see Department of Conservation v Tainui (DC Greymouth CRN 8018003265-6 4 November 1998 Judge GS Noble).