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Fox, Hon Deputy Chief Judge Caren --- "Access to Customary Law: New Zealand issues" [2011] NZYbkNZJur 17; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 224

Last Updated: 25 April 2015

ACCESS TO CUSTOMARY LAW:

NEW ZEALAND ISSUES¹

THE HON DEPUTY CHIEF JUDGE CAREN FOX

MāORI LAND COURT

I. INTRODUCTION

In addressing the topic “Access to Customary Law: New Zealand Issues”, I will discuss definitions of customary law and then I will move on and discuss different sources of Māori customary law. I will also discuss ways of working with Māori customary law by reference to the work of the Waitangi Tribunal and the Māori Land Court. The ultimate purpose of discussing these matters is to assist all concerned to identify and access Māori customary law.

ii. DEFINITIONS OF CUSTOMARY LAW

I want to begin by discussing what is “customary law”. To attempt a definitive definition of what is custom law is fraught with difficulty as scholars have diverse views and those views perhaps reveal more about their professional disciplines than they do about the nature of customary law. The difficulty of defining customary law is, perhaps, best reflected by pointing to the limited attempt made to deal with definitions in the Law Commission’s “Māori Custom and Values in New Zealand Law Report” (March 2001).

I do not propose to attempt such a task either. Indeed, it would take a PhD thesis to do so. What I can do is share one of the sources that I have preferred from the literature that may assist others to begin their own journey of discovering customary law.

In some circles the study of customary law has been described as legal anthropology. An excellent description of this field of study is to be found in N Rouland’s Legal Anthropology. He points out that legal anthropology is the study of law in society. It begins from the premise that all societies have

1 An earlier version of this paper was presented at the “Visible Justice: Evolving Access to

Law” Colloquium (Wellington, 12 September 2002).

law.² He has identified that there are over 10,000 distinct known legal systems operating in the world today. A study of those systems indicates the following generalisations can be made:

• Law emerges with the beginning of social existence.

• The complexity of law in a society will depend on the complexity or simplicity of that society; e.g. how many strata in that society, the nature of its economy etc.

• All societies possess political power that relies to some degree on the coercive power of law, while the modern state is only present in some of these societies.

• Where the state exists, customs and ritual may have been codified or reduced to judgment by the instruments of the state, e.g. the common law imported into New Zealand from Britain in 1840.

• In all societies law represents certain values and fulfils certain functions;

however, the common principles of law are:

» the search for justice; and

» the preservation of social order and collective security.

• Law is obeyed in different societies because individuals are socialised to obey, they believe in the just nature of the law, they seek the protection of the law, or they fear sanctions associated with non-observance.

In this approach, laws are nothing more than societal rules which have to be practically sanctioned in the here and now. Legal anthropology sets itself the objective of understanding these rules of human behaviour.³ These rules must be designed to address wrongdoing and must, inter alia, be capable of being socially and practically enforced in the interests of the community. Only then will they be considered part of the legal domain of a society.⁴

However, it may be that this command theory of law is too rigid and too Western and that a preferable way of approaching custom law is that discussed by Dr Alex Frame in his book Grey and Iwikau – A Journey into Custom.⁵

2 See generally N Rouland Legal Anthropology (The Athlone Press, London, 1994) and the discussion by R Boast “Māori Customary Law and Land Tenure” in R Boast, A Eurueti, D McPhail and N Smith Māori Land Law (Butterworths, Wellington, 1999) 1-42.

3 See generally N Rouland Legal Anthropology above n 2, and the discussion by R Boast

“Māori Customary Law and Land Tenure” above n 2 at 2.

4 See generally N Rouland ibid., and the discussion by R Boast ibid n 2 at 47-108.

5 Victoria University Press, Wellington, 2002; see also Dr Frame’s chapter in this volume.

Frame reviews the teachings of people such as Lon Fuller who described customary law as “a language of interaction”. Taking that further, Frame argues that law “develops by incorporating, adapting and modifying diverse elements”. If this approach is taken, then much of the flexible nature of custom is easily identified as law whether it stands alone or is grafted onto or accommodated within another legal system.⁶

iii. PACIFIC SOCIETIES

Perhaps, however, definitional approaches are unimportant in the context of trying to understand the nature of Māori customary law. It may be that it is more appropriate to study what happened here and what still happens here comparatively with other Pacific societies. Māori society, after all, is a Pacific society. From such study we may be able to learn new ways of revitalising Māori customary law.

Such a review could begin with looking back as suggested by Professor Richard Boast in his great chapter in Māori Land Law.⁷ In his work he takes us back to theorists such as Malinowski and his Crime and Custom in Savage Society. In this work Malinowski studied the Pacific region and made attempts to identify that which in Pacific societies could be labelled customary law.⁸

For example, he has generalised that obedience to laws in these societies was achieved through the concept of reciprocity. The law was usually obeyed because individuals knew that on other occasions they would benefit from the obedience of others. A review of the writings of Sir Edward Durie on the subject⁹ suggests that this argument is valid in relation to Māori law.

Aside from a review of these historical works and anthropological studies, there is much to be learnt from the study of customary law as it is being applied today in Pacific countries. Custom law is affirmed and recognised in many Pacific constitutions and there are an ever increasing number of customary law sources such as records of judgments or observations on the application of custom in villages emerging out of these jurisdictions. Likewise a number of legal scholars from the University of the South Pacific Law School have published extremely thoughtful papers on the application of customary law in

6 See generally K Sinclair A History of New Zealand (Penguin Books, 1991) Prologue and E Durie “Custom Law: Address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 VUWLR 325 at 328 and 329.

7 Above, n 2.

8 See B. Malinowski Crime and Custom in Savage Society (Routledge and Kegan Paul, London, 1926) and N Rouland Legal Anthropology, above n 2, for a discussion on law in ancient societies.

9 E Durie “Custom Law” (Unpublished Paper, January, 1994).

these societies. Many of these resources can be sourced from the University of the South Pacific Law School website. Follow the links to the School of Law – Vanuatu. A range of legal materials can be accessed from this site without leaving your office or library.¹⁰

IV.  MāORI CUSTOMARY LAW

As is clear from the research completed so far in this area, our general understanding of Māori law is evolving. What is emerging from the research can only be described as broad in scope and laced with generalisations which still need to be properly tested tribe by tribe or region by region.¹¹ Failure to do so will always mean, no matter how good any glossary or dictionary of terms may be, that concepts of Māori law will be selectively chosen to fit outside the cultural context within which they have evolved and adapted. In my view, Māori customary law concepts can only be properly ascertained and applied by considering their historical evolution within a particular hapū or iwi from ancient times through to the present. The challenge is to uncover and demonstrate that evolution.

What we do know from the research completed to date is that some emphasis has been given to conceptually framing Māori law in terms of “tikanga Māori”. This term is being used to describe the norms that maintained law and order in Māori society.¹²Tikanga, according to Sir Edward Durie, describes Māori law and the word is derived from the word “tika” or that which is right or just. Translated into English, tikanga has been rendered to mean “rule”.¹³

It is the sum total of such norms and values that formed tikanga Māori or Māori law. Māori operated by reference to tikanga and that was underpinned by philosophical and religious principles, goals and values. All combined to regulate the conduct of individuals, whānau, hapū and iwi and in this way social control was maintained by doctrines, such as the doctrine of tapu. It is this law that determined and still determines Māori proprietary customary law.¹⁴

10 See, for example, Kenneth Brown “Customary Law in the Pacific: An Endangered Species?”

3 Journal of South Pacific Law, Article 2.

11 E Durie “Custom Law”, above n 6 at 325.

12 Ibid., at 2-4.

13 HW Williams Dictionary of the Māori Language (Government Print, Wellington, 1997).

14 H Kawharu Māori Land Tenure: Studies of a Changing Institution (Oxford University Press, Oxford, 1977) at 40 and see E Durie “Custom Law” above n 6.

According to this approach, prior to 1840 and in many parts of the country until the mid 1860s, Māori hapū (subtribes) and iwi (tribes) were exercising “tino rangatiratanga” or sovereignty over their territories, resources and affairs.¹⁵

They did so in accordance with tikanga Māori or Māori law which operated as an effective legal order.¹⁶ This Māori system of law and custom was used to make decisions regarding, inter alia:

• leadership and governance concerning all matters including Māori land;

• intra-relationships and interrelationships with whānau (extended families)

hapū (subtribes), iwi (tribes/nations);¹⁷

• relationships with Europeans;¹⁸

• determining rights to land based on take tupuna (discovery), take tukua

(gift), take raupatu (confiscation) and ahikaa (occupation);¹⁹

• the exercise of kaitiakitanga (stewardship) practices including the imposition of rāhui (bans on the taking of resources or the entering into zones within a territory) and other similar customs;²⁰

• regulating use rights for hunting, fishing and gathering and sanctioning those who transgressed Māori tikanga or Māori rights (or both) in land and other resources;²¹

• regulating Māori citizenship rights to land and resources.²²

15 See W Swainson New Zealand and its Colonisation (C Smith, Elder & Co, London, 1859) at 151, L Cox Kotahitanga: the Search for Māori Political Unity (Oxford University Press, Auckland, 1993) at 3-4 and chs 4 and 7.

16 FM Brookfield Waitangi & Indigenous Rights, Revolution, Law & Legitimation (Auckland University Press, Auckland, 1999) at 86 and 87, and note the recognition of this law in the New Zealand Constitution Act 1852 (UK) 15 & 16 Vict, s 71.

17 A Erueti “Māori Customary Law and Land Tenure” in R Boast, A Erueti, D McPhail and

N Smith Māori Land Law (Butterworths, Wellington, 1999) at 33-37 and 38-41.

18 A Ward A Show of Justice: racial ‘amalgamation’ in nineteenth- century. New Zealand (Auckland, Auckland University Press/Oxford University Press, 1974), at 23, and see A Erueti “Māori Customary Law and Land Tenure” above n 17 at 28-30.

19 A Erueti, ibid., at 42-45, G Asher and D Naulls Māori Land (NZ Planning Council,

Wellington, 1987) at 5 and 6; and see H Kawharu, above n 14 at 55-56.

20 Waitangi Tribunal Muriwhenua Fishing Report (Wai 22) (Government Printer, Wellington,

1988) at 181.

21 Ibid., at 58, 61.

22 H Kawharu, above n 14 at 39, A Erueti “Māori Customary Law and Land Tenure” above n

17 at 33-35, G Asher and D Naulls Māori Land, above n 19, at 7. See also E Durie “Custom Law” above n 6 at 5. Note that these scholars use the term “membership” where this author uses “citizenship”.

V.  SOURCES OF MāORI CUSTOMARY LAW

Māori customary law was affirmed in the Treaty of Waitangi through the guarantee of “tino rangatiratanga” and is recognised in the common law of New Zealand through the doctrine of aboriginal rights, although the extent to which tikanga Māori can be recognised remains to be argued. There are now a number of statutes that recognise tikanga Māori including Te Ture Whenua Māori Act 1993, Resource Management Act 1991, the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, to name just three. Then there is the array of statutes that refer to the Treaty of Waitangi. These statutes by implication include tikanga Māori.

For these reasons it is important for all those who work in the law, either as law librarians, judges, lawyers, lecturers, researchers or law students, to be able to identify appropriate sources of Māori law.

I suggest all who assume these roles also start to learn Māori, as we on the Māori Land Court bench are doing. The purpose would be to become properly conversant with those in Māori society who are knowledgeable of Māori tikanga and te reo Māori. Only then can the written sources, that they are all so good at identifying, be placed in context.

I will now attempt to list some of the sources of Māori customary law to

demonstrate the breadth of material that is available on the subject.

Alex Frame with Paul Meredith in 2004 noted that English law is primarily written, whereas those of “Maori law are performances from a customary repertoire of songs, chants, dances, ceremonial acts of various types, carvings, and so on.”²³ Their preferred approach was to recognise the work of Professor Bernard Hibbitts at the University of Pittsburgh School of Law who has noted that customary law is personal, social, dynamic, ephemeral.²⁴

Thus it is the oral history of Māori people that is the primary source of Māori law and it is to be found: in te reo Māori (Māori language); in Māori cosmology; in whakapapa or genealogy; in waiata (song); in tribal and hapū citizenship and social organisation; in whakatauākī and whakataukī (proverbs and sayings); karakia (prayer); in the arts including the performing and ancient and contemporary visual arts; in place names (rivers, mountains, gardens, wāhi tapu etc.) and peoples names; in whaikōrero (male oratory) and karanga (female oratory); in meeting houses including the carvings and tukutuku

23 A Frame and P Meredith “Performance and Maori customary Legal Process” (paper prepared for Symposium on Concepts and Institutions of Polynesian Customary Law, University of Auckland, 2004) at 1.

24 Ibid., at 2.

(woven) panels; in the cultural use of resources and the artefacts and utensils that were adapted to gather those resources. It is there to be researched for the benefit of future generations.

It seems to me that the next step in beginning this journey of discovery for those who are just coming to terms with Māori customary law should be with Sir Edward Durie’s “Custom Law Paper”²⁵ and Hone Clarke’s “He Hinatorekite Ao Māori – A Glimpse into the Māori World: Māori Perspectives on Justice”²⁶ available on the Ministry of Justice website.²⁷ Watch out for the publication of Te Mātāpunenga, the Compendium of References to the Terms and Concepts of Māori Customary Law (see articles by David Baragwanath, Alex Frame and Richard Benton in this volume). Waikato University’s Library has a large collection available on Māori customary law and the bibliographies can be easily obtained from the web.

Then read the Law Commission’s Māori Custom and Values in New Zealand Law report (March 2001). The next step is to also read the Law Commission’s Justice: The Experience of Maori Women Te Tikanga o te Ture: Te Matauranga o Nga Wahine Maori e Pa ana ki Tenei (1999), because both reports touch on the devastating impact caused by the imposed legal system during the period of colonial denial of Māori law from 1860 to 1975.²⁸ These studies will give you an overview of what the field covers.

An archival source review should naturally follow if more depth is required, including consulting early settler and Māori written observations such as those recorded in the diaries of William Colenso and George Grey etc. Early Māori writings include whakapapa books and diaries such as those held by the Auckland Museum, many of which are in Māori and are access restricted. Other Māori sources include the letters and articles written for the old Māori newspapers. Anthropological works such as those produced by Elsdon Best and Sir Peter Buck (Te Rangihiroa) have their place in this jigsaw as do publications such as the Journal of Polynesian Society. Books such as Ngā Mōteatea as recorded by Pei Te Hurinui Jones and Sir Apirana Ngata (recently republished four volumes by the Polynesian Society and Auckland University Press) and the tribal histories such as Don Stafford’s Te Arawa (now out of print) are important sources of this knowledge. Librarians are especially well placed to assist in identifying these works.

25 Above n 6.

26 Ministry of Justice, Wellington, 2001.

27 Available at <www.justice.govt.nz/pubs/list/process_order.asp?pub=r691>

28 Available at <www.lawcom.govt.nz>.

Other sources include the many letters, submissions and articles or study papers written by Māori to Parliamentary Select Committees, Ministers and Government Departments, all sources waiting to be properly identified and referenced into a tikanga Māori series. Many are published in the Appendices to Journals of the House of Representatives.

In contemporary times notable authors such as Sir Hirini Mead, Tania Rangieuea, Dr Pat Hohepa, Sir Hugh Kawharu, Māori Marsden, Pene Taiapa, Dr Apirana Mahuika, Ani Mikaere, Moana Jackson, Sir Mason Durie, Andrew Erueti, Judge Stephanie Milroy, Whaimutu Dewes, Dr Nin Tomas, Dr Rose Pere, Dr Margaret Mutu and many more have written on topics that bear on this subject. Their various publications should be listed by academic and legal librarians along with any other source material they may have into an index for custom law researchers who will use their libraries.

Sources such as the record of proceedings for Courts or tribunals including the Minute Books of the Māori Land Court and the archives and reports of the Waitangi Tribunal have a wealth of information as well.

VI.  WORK AND RESOURCES –

WAITANGI TRIBUNAL, MāORI LAND COURT AND MAINSTREAM

I now want to turn to consider how tikanga Māori is being used in the work of the Waitangi Tribunal and the Māori Land Court and then in the mainstream legal system.

I am one of the 11 judges of the Māori Land Court. We sit in seven districts and we administer approximately 5.6 per cent of the New Zealand land base that is still classified as Māori land. We are also available to sit as Presiding Officers on the Waitangi Tribunal. As the two legal institutions within the dominant legal system most closely aligned to the revitalisation of tikanga Māori, I think it is important to discuss how we apply tikanga Māori in our work.

A. Waitangi Tribunal

The Waitangi Tribunal was first constituted in 1975 under the Treaty of Waitangi Act of that year. It was established to hear claims from Māori filed against the Crown pursuant to section 6 for inter alia any acts or omissions that were inconsistent with the “principles of the Treaty of Waitangi”. Initially the

Waitangi Tribunal struggled to find a way to incorporate tikanga Māori into its work and reports.²⁹ However, with the appointment of Sir Edward T Durie as the Chairman of the Tribunal by 1982, that position changed dramatically.

In my view, the Waitangi Tribunal model is important in the revitalisation of tikanga Māori because of the way it is constituted to hear claims. It brings together a mix of historical, legal and tikanga Māori experts who analyse early settler and official accounts with oral history. The Tribunal hears claims in panels of three to five and many of these panels have been keen to experiment with procedure, or introduce innovations so as to accommodate the particular circumstances of the claims or context of claimant groups, while ensuring a fair process for the Crown.

Schedule 2 of the Treaty of Waitangi Act 1975 at clause 8(1) deems the Tribunal to be a commission of inquiry, under the Commissions of Inquiry Act 1908 (COI), and, subject to the provisions of the 1975 Act, all the provisions of that COI, except sections 11 and 12 (which relate to costs) apply accordingly. As with all commissions of inquiry, the Waitangi Tribunal has wide powers to regulate its own procedures. Under clause 5, sittings of the Tribunal are held at such times and places as the Tribunal or the presiding officer may from time to time determine. The Tribunal may meet in private or in public, as the Tribunal from time to time decides. Unless expressly provided in the 1975

Act, the Tribunal may regulate its procedure in such manner as it thinks fit, and in doing so may have regard to and adopt such aspects of te kawa o te marae (customs of the marae) as the Tribunal thinks appropriate in the particular case, but shall not deny any person the right to speak during the proceedings of the Tribunal on the ground of that person’s sex. Thus a Tribunal hearing may start on a marae ātea (the domain in front a meeting house associated with Tūmatauenga – the God of War) with the full ritual of encounter, known as the pōwhiri (welcome ceremony). During that time speeches and waiata/ haka delivered or performed are noted to ascertain the key factors of any claim, namely, who the local people are, what their whakapapa is and how that whakapapa links them to the land and other natural resources of the area or any other aspect of the claim.

Clause 6 provides that the Tribunal may act on any testimony, sworn or unsworn, and may receive as evidence any statement, document, information, or matter which in the opinion of the Tribunal may assist it to deal effectually with the matters before it, whether the same would be legally admissible evidence or not. In addition, witnesses appearing before the Tribunal may give their evidence in the Māori language. These pillars of procedure have

29 See A Ward An Unsettled History: Treaty Claims in New Zealand Today (Bridget Williams

Books, Wellington 1999).

ensured that kaumātua (elders) and other traditional experts who wish to give evidence can do so without the strict formality associated with more formal court or tribunal processes and they may do so in the Māori language.

Also notable is clause 7, which makes it clear that any claimant or other person entitled to appear before the Tribunal may appear either personally or, with the leave of the Tribunal, by a barrister or solicitor of the High Court; or any other agent or representative authorised in writing. Any such leave may be given on such terms as the Tribunal thinks fit, and may at any time be withdrawn. I have emphasised this “leave” aspect as it is too easily forgotten in this jurisdiction, that representation by a barrister or solicitor is not a right and that the Tribunal has the right to reduce the number of lawyers who appear and thereby reduce the amount of formality so as to create a more direct relationship with claimants.

As a result of the approach it takes to the hearing of claims, the reports of the Tribunal now demonstrate its unsurpassed expertise in dealing with evidence of tikanga Māori. When I first wrote this paper in 2002, the Waitangi Tribunal had incorporated several brilliant chapters in Te Whanganui-a-Orotu Report (Wai 55, 1996), Whanganui River Report (Wai 167, 1999), Rekohu – Report on Moriori and Ngati Mutunga Claims in the Chatham Islands (Wai 64, 2001) integrating, with some sophistication, tikanga Māori. Since 2001, there have been even more detailed chapters and sections of Waitangi Tribunal reports emphasising customary evidence and tikanga Māori. These reports include the Turanga Tangata Turanga Whenua Report (Wai 814, 2004), He Maunga Rongo

– the Report on the Central North Island Claims – Stage 1 (Wai 1200, 2008),

Mohaka ki Ahuriri Report (Wai 201, 2004), The Urewera Report (Wai 894,

2009), Wairarapa ki Tararua Report (Wai 863, 2010), Te Tau Ihu o te Waka a Maui – Preliminary Customary Rights Reports 1 & 2 (Wai 785, 2007), and the recently released Ko Aotearoa Tenei – A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity (Wai 262,

2011). All the reports of the Waitangi Tribunal may be found on line at the

Waitangi Tribunal’s website.

Aside from the reports of the Tribunal, there are countless tapes, mana whenua reports and written briefs from Māori witnesses who have given traditional and contemporary evidence of Māori law, custom, practices and beliefs during the hearing of their claims. These sources are held in the archives of the Tribunal and remain to be discovered by the student or researcher of customary law.

B. Māori Land Court

In relation to the Māori Land Court, we too have some experience with Māori customary law and dealing with Māori communities. At various times in the history of the Court since 1865, our Court has been charged with the responsibility of applying Māori tikanga in relation to ascertaining rights and interests in land, including hearing evidence on Māori customary adoptions, Māori customary title, Māori succession practices, customary marriages, Māori genealogy, wāhi tapu or sacred sites, fishing grounds and other places of importance.

The Preamble to Te Ture Whenua Māori Act 1993, sections 2 and 17, implicitly require the Court to consider applications before it in a manner that takes into account aspects of tikanga. Tikanga is defined in our statute at section 3 as “Māori customary values and practices”. In addition, the flexible nature of our procedure, with an emphasis on avoiding any unnecessary formality as set out in section 66, allows us to adopt marae kawa or protocols and to hear cases in the Māori language. Since 2009, I have used this provision to sit with elders during standard Court sittings in Te Kaha, Opotiki, Wairoa, Gisborne and Ruatoria. Of course, they cannot sit to hear the case under this provision as they are not legally part of the Court, but they can and do assist with tikanga Māori issues that may emerge at the commencement, during or at the conclusion of a case.

For specific cases, the parties, the Governor-General in Council, the Minister of Māori Affairs, the CEO of Te Puni Kōkiri or the Chief Judge, or any other court, commission or tribunal may also refer issues, or receive advice from the Māori Land Court on matters that raise tikanga Māori concerns. These include matters heard under Te Ture Whenua Maori Act 1993, sections 26A–26N,

26O–26ZB, 27, 29, and 30–30J. These provisions deal respectively with Māori fisheries disputes, Māori aquaculture disputes, special jurisdiction cases under section 27 and 29, and representation disputes. Tikanga Māori experts can be appointed to hear such cases, and these experts form part of the Court with full decision making power.

More often, however, the judges sit alone in areas such as the Taitokerau, Waikato, Rotorua, Taupo and Aotea where there are still people whose first language is Māori. Coupled with the ageing of kōhanga reo graduates, the first generation of whom are now old enough to appear in the Court, there is a demand for Māori language speaking judges.

Nonetheless, despite the experience and familiarity of the Court with matters of custom, it would be a mistake to conclude that the judges are experts in tikanga Māori. The reality is that the complex nature of the statutory framework

surrounding Māori land law means that lawyers, who do not necessarily have expertise in tikanga Māori, have in the past dominated our bench. That is why kaumātua have to be appointed to boost the Court’s ability to hear such cases. This lack of expertise is also the reason why we are exploring the possibility of extending the composition of the Court to include kaumātua or “pūkenga” sitting with judges to hear applications before the Court as full members of the bench.

In addition, the Māori Land Court judges are all attending annual Māori language and tikanga Māori wānanga (learning hui) sponsored by the Institute of Judicial Studies. This initiative was first instituted in 2001 and has continued every year since then. This is an initiative that comes after 137 years of legal history.

Although several of the Native Land Court judges in the 1800s spoke some Māori, there was no legal requirement to have any knowledge of Māori tikanga or language to be appointed a judge of this Court. The good news is that this issue has been addressed in Te Ture Whenua Māori Amendment Act 2002. Now section 7 requires that only people who are suitable, having regard to their knowledge and experience in te reo Māori, tikanga Māori, and the Treaty of Waitangi, should be appointed as judges of the Māori Land Court and it is a matter taken seriously during the interview process for new judges.

Appeals from the Māori Land Court are made to the Māori Appellate Court where major concerns raising tikanga issues can be fully heard and determined by three judges of the Māori Land Court. In addition, the High Court can state a case to that Court on any question of tikanga under section 61 of Te Ture Whenua Māori Act 1993 and under section 99 of the Marine and Coastal Area (Takutai Moana) Act 2011.

Turning to the resources of the Māori Land Court, it is important for researchers of customary law to understand the nature of Māori customary land tenure and the manner in which the Native Land Court was used as an instrument to assimilate that title into the new colonial legal order. This process should begin by reading the excellent chapter referencing most of the known works in this field by Professor Richard Boast in Māori Land Law.³⁰ The next publication to read is Customary Māori Land and Sea Tenure: Ngā Tikanga Taonga o Neherā.³¹ Then become familiar with the resources of the Māori Land Court, which still acts as the repository for the largest collection of indigenous knowledge on this subject.

30 Above n 2.

31 Manatū Māori, Wellington 1991.

The evidence and early judgments of the Native Land Court are another useful source of customary law and these are to be found in the Minute Books held in each of the seven Māori Land Court Registries and in the Chief Judge’s Minute Books.

In modern times, tikanga Māori concerns raise various issues before the Court and some of the more recent relevant Māori Appellate Court judgments dealing respectively with the rights of whāngai (customary adoptions), rights of children, selling of interests in land and rights on intestacy include Hohua

– Estate of Tangi Biddle or Huhua (2001),³² Niao v Niao (2004),³³ Mihinui – Maketu A100 (2007),³⁴ and Nicholas v Kameta – Estate of Whakaahua Walker Kameta – Te Puke 2A2A3B1 and 2A2A3B2 (2011).

Accessing the records of the Māori Land Court, including its judgments, is becoming easier. That has not always been the case. Less than five years ago the Māori Land Court records (comprising 12 million pages of paper records) could only be accessed by travelling to each Māori Land Court registry. Through the introduction of a new computer system, all that has changed. The Māori Land Information System or MLIS contains a complete computerised index of all Māori land title and ownership information. MLIS is now available online so that Māori living in urban settings can search their land information by using names of individuals or block titles.

All of this information can be accessed at every Māori Land Court district registry and anywhere else where a Court officer or judge has a laptop computer and can connect to the network. In addition, the system has been extended to an imaging project allowing the historical records of the Court to be computerised. The Māori Land Court also has its own web page with all the judgments of the Māori Appellate Court and reasonably important judgments of the Māori Land Court loaded on site. Other information concerning the Court and its services and Māori land are accessible via this web page. Finally, the Pānui of applications for hearing before the Māori Land Court is published monthly and is delivered to any person who requests a copy.

32 10 Waiariki Appellate Minute Book 43.

33 10 Waiariki Appellate Minute Book 263.

34 11 Waiariki Appellate Minute Book 230.

C. Mainstream legal system

I conclude by noting that other than a few successes in the Privy Council during the early 1900s in cases such as Nireaha Tamaki v Baker (1900–1901)³⁵, Baldick v Jackson (1910),³⁶ Hineiti Rirerire Arani v Public Trustee (1919)³⁷ and in more recent cases in the local courts such as Te Weehi v Regional Fisheries Officer (1986)³⁸ and Ngati Apa v Attorney-General (2003)³⁹ where Māori custom has been recognised or acknowledged as a potential source of rights, the mainstream courts have been challenged by the notion that it is a form of law. However, a discernible shift is occurring. This is reflected in judgments from all the courts and initiatives such as the Rangatahi Courts and the use of kaumātua (elders), the Environment Court’s willingness to have alternate Environment Court Judges from the Māori Land Court and that Court’s acceptance of Māori protocol such as karakia (prayers) and mihi (greetings) and the District Court’s recognition of the appropriateness of custom in certain contexts.

Where there remains some entrenchment relates to the role of Parliament. Although sometimes flirting with notions of custom such as in Te Ture Whenua Maori Act 1993, the Resource Management Act 1991 and the other statutes referred to above, it has struggled with the notion of customary law and has consistently legislated to nullify the impact of any court decisions that it believes threatens its sovereignty as the penultimate source of all law concerning Māori.

Thus, it seems to me, there needs to be a continuing constitutional conversation about the place of Māori customary law, the Treaty of Waitangi, the Constitution and the future we see for the tangata whenua of the nation state that is New Zealand-Aotearoa.

35 [1842-1932] NZPCC 371.

36 30 NZLR 343.

37 NZPCC 1.

38 [1986] NZHC 149; [1986] 1 NZLR 680.

39 [2003] NZCA 117; [2003] 3 NZLR 643.