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Powles, Dr Guy --- "Overview. The status of Customary Law: achievements and prospects" [2011] NZYbkNZJur 18; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 238

Last Updated: 25 April 2015

OVERVIEW

THE STATUS OF CUSTOMARY LAW:

ACHIEVEMENTS AND PROSPECTS

DR GUY POWLES

The study of custom and customary law, and their place in the national polity, is coming to the fore, as their relevance is increasingly recognised. For people living according to custom or engaged in aspects of it, further knowledge is desired of its history and meaning. Leaders entrusted with policy-making at different levels require, in addition, a sound understanding of the nature of custom and customary law, and the dynamics of its interaction with other social norms and particularly the law and legal apparatus of the State.

This is a large and complex area of study which deserves the commitment of resources by governments, universities and cultural centres, and the development of materials for secondary-level education.

In a brief contribution to mark the first Symposium in 2004,¹ I referred to my conviction that the relationship between strongly held cultural beliefs and law, as articulated through established language, had been inadequately researched and understood, requiring genuinely interdisciplinary and comparative approaches on a Pacific-wide basis, as well as in-depth local studies.² Up to that point, I had been a student of Samoan customary law since the mid-1960s, held judicial positions in Samoa and Micronesia, focused on the constitutional systems of newly independent states, and had examined the plural law systems of most other Pacific Island countries, culminating in research for the teaching of Pacific Comparative Law at Monash University and Customary Law at the University of the South Pacific School of Law in Vanuatu.

As I became more familiar with the work of Te Mātāhauariki Institute and its associated projects, Te Mātāpunenga in particular, I was deeply impressed by the collected achievements of the dedicated individuals involved, many of whom are contributors to this volume.

1 Reproduced in part in a preface to Richard Benton (ed) Conversing with the Ancestors (Te

Mātāhauariki Institute, Hamilton, 2006) at v.

2 Guy Powles “Customary Law Systems and the Pacific Island State: the Search for Workable

Relationships” (2003) 2(1) The New Pacific Review 263, Australian National University.

In this book’s concluding “overview” of the 2007 Symposium, it is impossible for me to do justice to each of the chapters, representing as they do, an extraordinary diversity of approaches and subject matter. The field of study

‘Custom and the State’ lends itself to the identification of certain dimensions. This treatment does not purport to be in any way comprehensive, but is designed to reflect the contributions to the subject contained in this book.

Accordingly, the Polynesian experience of the Samoans and Hawaiians is considered alongside that of the Māori, and some broader Pacific-wide discussion has ensued.

The dimensions of the subject are reviewed under four headings: I. The language of custom

II. The nature of customary law

III. The relationship of customary law to the legal system as a whole

IV. Conflicts of norms, erosion of custom and the future.

i. THE LANGUAGE OF CUSTOM

The place of custom in the social fabric of a nation is evidenced by the extent to which language is central to the custom system. The statement of Sir James Henare that “The language is the core of our Māori culture and mana”³ set the scene for this volume’s exploration of the importance of language.

The first port of call is undoubtedly Richard Benton’s account of and introduction to the Te Mātāpunenga Compendium,⁴ “a collection of annotated references to the concepts and institutions of Māori customary law”, which is to be published in final form in 2012. The Compendium’s etymology of 114 key terms links Māori with its past and with other languages of Proto-Polynesian origin over a period of 2500 years. In this volume, Benton’s chapter offers insights into the value of this research, together with discussion, and intriguing examples of how old and new meanings have been blended. Such research techniques might one day help to answer questions about such matters as the status of women under pre-custom, referred to by Claire Slatter.⁵

Historical depth, and acknowledgement of change in meaning, direct attention to issues surrounding the use and interpretation of language. In addressing questions about the conservative nature of custom, Helen Aikman has pointed to the Law Commission’s recommendation against the codification of custom

3 Baragwanath J, Preface, this volume.

4 Benton, this volume.

5 Slatter, this volume.

language.⁶ Through its explanation of the roots and values of a custom, the

Te Mātāpunenga commentary shows how it has been adapted over time.⁷

So, insofar as the authenticity of a custom is dependent on the language in which it is expressed, allegations that a particular custom has been invented may be tested by adjudicators and scholars who may “identify and denounce fabrications and false pleadings...”.⁸ This is highly topical in New Zealand, involving the concept of tapu in its application to wāhi, where wāhi tapu means protected place. Robert Joseph has reviewed recent litigation to reveal problems of proof and adjudication around language.⁹

Turning now to Samoa and its chiefly system of faamatai, the three elements considered to be a Samoan’s core identity and inheritance are the matai title, the land appurtenant to the title, and the Samoan language. Tamasailau Suaalii-Sauni has offered probing insights into the word choices people make in asserting customary knowledge, and has challenged us to think more deeply about the “discourses of certainty” that such choices may invoke.¹⁰

The discussion is illustrated by reference to several contexts, such as the Samoan words used for “Samoan custom and tradition” in the Preamble to the nation’s Constitution on independence in 1962, the variety of interpretations that villagers placed upon the meaning of the Village Fono Act 1990, and submissions to the Land and Titles Court in disputes over the rightful heir, suli, and assertions of authority, pule. In the course of her wide-ranging discussion, Suaalii-Sauni has presented evidence of scholarly activity around the Samoan language which fits well with the objectives espoused by Te Mātāpunenga.

ii. THE NATURE OF CUSTOMARY LAW

Language frames and gives meaning to law. Terms mark or label understood sets of laws, defining subject areas (for example, suli and pule referred to above). Justice Heath has observed that “there is as much a Māori law as there is a Māori language”.¹¹ The discussion begins here with the ways in which words are used and interpreted so as to declare our values and define our customs and practices, that is to say, our social norms. It then enlists words which require or prohibit certain activity or behaviour in order to formulate a statement of customary law. It is the hallmark of customary law that it does not rely on the State for its effectiveness. The Editorial Board of Te Mātāpunenga

6 Aikman, this volume.

7 Benton, this volume.

8 Frame, this volume.

9 Joseph, this volume.

10 Suaalii-Sauni, this volume.

11 Heath J, this volume.

approved a definition of customary law which makes it clear that a social norm may be recognised as law even if its breach may not be met with force, but instead by “the construction of serious social disadvantage by an individual, group, or agency possessing the socially recognised privilege of so acting”. Alex Frame has provided a useful account of how the definition was arrived at.¹² In many Pacific Island communities, public shaming, ostracism from local affairs and economic penalties are sufficient sanctions to sustain a system of social control.

In societies where custom is maintained around the authority of chiefs, it is sometimes difficult to identify the rationale behind obedience to chiefs’ instructions. In fact, reciprocity of obligation sustains a close relationship where leaders of kinship groups earn obedience. Chiefs of higher rank and councils of chiefs depend for their effectiveness on the making and enforcement of rules that have community support. When State laws intervene to recognise, adopt and support a chief’s function, the chief may come to depend on his statutory “clothing” rather than reciprocal obligation and customary respect. Indeed, the nature and utility of chiefly authority generally is a topic deserving research and debate in many Pacific Island societies.¹³

Of course, an assumed characteristic of customary law is that it is often, and in the distant past was always, unwritten. For all but those people today who are actually living under customary law, by the time it comes to be disputed, it is almost always written down in one form or another. Customary law may appear in codifications, in sets of village rules (as in Samoa and Vanuatu) or in constitutions and statutes that give effect to customary law principles (as does the Village Fono Act, Samoa). In the Land and Titles Court of Samoa, customary law is presented to the Court in written pleadings. These, with the statements of contending parties, and the Court’s findings of fact, are written into the record. Very often, however, the Samoan Court does not announce or record its reasons in customary law terms.

Discussing the charge that custom may be ‘made up’ to suit, Frame has drawn attention to the risk that claimants may invent law, and that judges may invent law – to suit the facts – to be recorded for posterity. He urges that customary law should instead be “found” by the judges, from the “bottom up” development of laws.¹⁴ Grant Young has presented a critical analysis of attempts over time to arrive at a set of criteria against which claims to Māori

12 Frame, this volume.

13 National University of Samoa is a logical venue. See Guy Powles “Chiefly Systems and

Pacific Island Constitutions: Comparative Trends Relevant for Samoan Studies” (2005) 1

The Journal of Samoan Studies 119.

14 Frame, this volume.

land based on custom could be assessed. At different stages in the history of claims, custom was researched, rules were stated and restated, and judgments of the Land Court accumulated. A codification in 1942 “imposed twentieth century order retrospectively on nineteenth century uncertainty”.¹⁵ Young has concluded that what is today claimed to be Māori customary law in relation to land claims has in fact failed to capture its complexity and the layers of interests accreted over time.

In the context of New Zealand’s contribution to the study of customary law, one of the objectives of this volume is to recognise the brief but hugely significant life of the Te Mātāhauariki Research Institute. It is modestly outlined in “A Short History”,¹⁶ but may perhaps be better understood in light of the extensive list of newsletters, books and chapters, articles, occasional papers, addresses and other presentations published under the aegis, or by members, of the Institute. Readers are recommended to peruse this list, which is presented here as the Appendix to the “Short History”.¹⁷

In a detailed examination of the growing significance of wāhi tapu, Joseph has demonstrated how the Te Mātāpunenga methodology has produced an essential resource for the judiciary and wider public, particularly where challenges occur at the interface between tikanga Māori custom and State regulatory systems.¹⁸ Wayne Rumbles has drawn attention to the importance of looking closely at some of the ways that Te Mātāpunenga information can be and has been disseminated, and the issues involved.¹⁹

iii. RELATIONSHIP OF CUSTOMARY LAW TO THE

LEGAL SYSTEM AS A WHOLE

The size of this dimension of the subject invites some subdivision. Drawing on the foregoing chapters, this section will review the relationship of customary law to the legal system as a whole under four headings:

A. History of the relationship

B. Sources of law, judicial systems and spheres of operation today

C. Recognition of customary law and its ranking in the courts of the State

_{D. Problems of proof}

15 Young, this volume.

16 Frame, Rumbles and Benton, this volume.

17 Ibid.

18 Joseph, this volume.

19 Rumbles, this volume.

A. History of the relationship

The only phrase that accurately describes the first meeting and interaction of the customary laws of the societies of the Pacific Islands and New Zealand with introduced laws and institutions is diversity of experience.

Indeed, this is a good point in the chapter to review the layers of difference that characterise the Pacific Island and New Zealand experience. They are a key element in the understanding of societies, which is still not fully appreciated by many commentators and policy-makers. The original inhabitants of the islands of the region had developed distinctive orders of traditional governance and social control. Slatter has reviewed traditional gender divisions across Polynesia, Melanesia and Micronesia.²⁰ Such orders in turn responded in different ways to introduced concepts and processes, themselves flowing from a broad spectrum of European and American religious beliefs, legal traditions and commercial practices. Another layer of difference which distinguished Pacific region experiences, one from the other, was the character of foreign administrations during colonial periods, and the steps taken to deal with a plurality of sub-systems of law. As time went on, whether a territory had international status as a ‘mandate’ then ‘trusteeship’ (the case of Samoa, New Guinea and Nauru) or a lesser or contested degree of autonomy (for example, New Caledonia) became significant. In summary for the region, one of two main routes has been adopted by indigenous societies – either incorporation into a state alongside introduced societies, or a degree of autonomy ranging from independence to ‘free association’, under a constitution reflecting certain international standards, but accommodating to greatly varying degrees across the region, elements of indigenous values and customary law.

Accordingly, there is a very different story to tell for each society and polity. Readers are indebted to contributors to this volume, particularly Benton for insights from the language perspective,²¹ Young for his historical approach incorporating the reminder that Māori history did not begin with the Treaty of Waitangi,²² and, to the north, Melody MacKenzie for her study of white interference as played out through the division of Hawaiian land in the Mahele and the limitation of Hawaiian land-holders’ rights flowing from the Kuleana Act.²³

20 Slatter, this volume.

21 Benton, this volume.

22 Young, this volume.

23 MacKenzie, this volume.

Of particular relevance to setting the scene for the development of Māori-Pākehā relations in New Zealand is John Farrar’s examination of the motivations and recorded statements of key players involved in the formation and early administration of New Zealand as a Crown colony. These divergent, often opposing, views, as expressed, reveal how ill-prepared and inconsistent policies must have contributed to growing Māori apprehensions about the future of their land and culture. As Farrar concludes, rather mildly, the development of the New Zealand State was “complex and sometimes troubled”.²⁴

B. Sources of law, judicial systems and spheres of operation today

The overall significance of the role and scope of customary law in a country today may be said to depend to a large extent on the outcome of three brief enquiries. One is the apparent status of customary law as a source of law. Pacific Island countries operating under constitutions (currently there are 14 of them) may appear to have an advantage if the constitution acknowledges custom as a source of law, either directly, or by requiring legislative action to do so. Also, constitutional preambles and statements of principle that declare the fundamental nature of customary values and cultural heritage are intended to be taken into account in statutory interpretation. Of course, just how real and effective these constitutional provisions are will depend on political will to enact legislation and on the treatment they receive in the courts, as discussed in section C. below.

New Zealand’s experience was complicated by the absence of constitutional definition and the need to examine early settlements such as the Treaty of Waitangi. According to Justice Heath, the promising start to the acknowledgement of Māori custom in the early days soon evaporated.²⁵ Much to the disgust of Frame, the Privy Council in 1941 closed off the Treaty as a point of entry for Māori customary law.²⁶ There is no reason in principle, however, why Māori custom should not be regarded as a free-standing source of law, in the manner of English common custom, subject to limitations. Joseph concluded his account of the early years with the observation that nearly 100 years passed after the Wi Parata decision²⁷ until the Waitangi Tribunal became the catalyst that “resurrected tikanga Māori customary laws and institutions” as well as “the ‘principles’ of the Treaty of Waitangi, significantly within the New Zealand legal system”.²⁸

24 Farrar, this volume.

25 Heath J, this volume.

26 Frame, this volume.

27 Wi Parata v Bishop of Wellington (1877) 2 N Z Jur (N S) S C 79.

28 Joseph, this volume.

Hawai‘i, as a state of the USA, also had its own story, as told by MacKenzie, and today the status of customary law stems from an 1892 statute and a 1978 constitutional amendment, empowering the courts to apply custom.²⁹

The Samoan Constitution is important almost as much for what it does not say as for what it does. It acknowledges “custom and usage” as a source (art

111). On the other hand, it leaves space for traditional village councils to perform judicial as well as administrative and local law-making functions across the country. The constitutions of some other Pacific Island states also declare custom or customary law to be a source of law.³⁰ Another approach is that of the Fiji Constitution 1997 which requires Parliament to pass legislation to provide for the application of customary laws and for dispute resolution in accordance with traditional Fijian processes (s 186). To date, this has not been done.

The second enquiry looks at the structure of the judicial system to make note of the jurisdictions that find and apply customary law. In some countries, such customary courts are established under the constitution. A more thorough study might seek to assess the knowledge, expertise and competence of judges in these jurisdictions. For present purposes, it is sufficient to observe, for example, that New Zealand possesses such a court – formerly the Native and now the Māori Land Court. The Samoan Constitution provides for a Land and Titles Court which applies customary law exclusively in relation to customary land and chiefly titles. The Land Division of the High Court of Cook Islands, as successor to the Land Court, is required by the Constitution (art 48) to apply custom to land cases. The Solomon Islands has Local Courts, and Customary Land Appeal Courts.³¹

The third enquiry steps back from law and its sources to survey the national polity in its entirety and make some generalisations as to the circumstances or spheres of activity in which customary law operates in the region. The objective is to see customary law in perspective, as part of the total legal system. Where, for what purpose and how widely is it used? In what situations is customary law an established “living law” reflecting people’s needs, or where is it contesting space at the margins, perhaps in decline, or perhaps enjoying a revival? Although this third approach was not attempted by contributors to this volume, it is helpful as a means of placing the customary law situations in the countries under discussion within some sort of comparative framework.

29 MacKenzie, this volume.

30 For example, Vanuatu Constitution 1980, art 95; and Papua New Guinea Constitution 1975,

s 20 sched 2.1.

31 Local Courts Act (Solomon Islands) ss 3–16; and Land Titles Act (Solomon Islands) s 255.

In 1997, as part of an overview of customary law in the region,³² I constructed a table of some 24 states and territories, and classified them according to certain criteria. Of course, a background question relevant to the survey, but unnecessary here, was whether indigenous society is broadly homogeneous in terms of culture and language, or multi-custom, comprising numbers of indigenous communities whose customs and language are distinct. To put the use of customary law into a quantitative perspective, the states mentioned in this volume may be classified according to whether the state in question –

(1) recognises a substantial body of unwritten or codified customary law in relation to most of the land area – eg Cook Islands, Fiji, Kiribati, Papua New Guinea, Samoa, Solomon Islands, Tuvalu and Vanuatu;

(2) recognises some customary law in relation to some land areas – eg

New Zealand;

(3) recognises some unwritten customary personal law in relation to some marriages and adoptions – eg Papua New Guinea, Solomon Islands and Vanuatu;

(4) gives significant recognition to the authority of chiefs in government

(national and/or local) – eg Fiji, Samoa and Tonga;

(5) gives some recognition to the authority of customary leaders in

government activity – eg Cook Islands and Vanuatu;

(6) recognises some customary local law and/or settlement of disputes in criminal courts, local courts or land courts – eg Kiribati, Papua New Guinea, Samoa, Solomon Islands, Tuvalu and Vanuatu.

It is important to note, that, in theory at least, legal pluralism has been established as the norm, without the “setting apart” of districts within which indigenous laws should be observed, as in the case of North American “reservations”. In New Zealand, 1852 provision for setting districts aside was not implemented, and was repealed in 1986.³³ Nevertheless, where a constitutional gap (Samoa) or lack of government services (Vanuatu) leaves village or island government entirely in the hands of local traditional councils, daily lives run according to customary law, regardless of the formal legal apparatus and national concerns of the State.

32 Guy Powles “Common Law at Bay?: The scope and status of customary law regimes in

the Pacific” (1997) 21 The Journal of Pacific Studies 61, University of the South Pacific

<www.usp.ac.fj/jps/abstracts21.html#21_3>.

33 Heath J, this volume; Farrar, this volume; and Joseph, this volume.

Thus, the customary law/legal system relationship is nowhere static. To the above analysis of current relationships must be added New Zealand initiatives aimed at pursuing new approaches to the engagement of custom in the organisation and management of the key social, economic and cultural affairs of traditional groups. Justice Durie wrote with enthusiasm in 2007 about proposals for waka umanga as “purpose-built statutory entities with corporate personality and perpetual succession” which would (1) represent the tribes, not replace them; (2) serve as servants of the tribes; and (3) pursue “tribal vision, not just a business ethic”.³⁴ Criteria must be met, such as being “culturally compliant” and independent from government, and adopting policies directed towards fairness and good governance. In this volume, Justice Durie’s discussion of the work of the Law Commission towards a Waka Umanga Bill, introduced in 2007, is followed by a saddening “Postscript” account of its demise in 2009, for which it seems responsibility should be widely shared.

C. Recognition of customary law and its ranking in the courts of the

State

As a general rule, and even if customary law is a source of law in its own right, the application of customary law in a matter before the court will be subjected to certain tests – unless, of course, the court has express jurisdiction to apply customary law, as mentioned above.

In this volume, Justice Heath and Frame, for New Zealand, and MacKenzie for Hawai‘i, have usefully illuminated the approaches taken in the “common law” courts. The New Zealand tests imposed on custom to determine whether it will be applied (adopting Heath and Frame) are simplified here as “reasonableness, certainty, immemoriality and continuity”. As one looks at experiences in the rest of the region, it is apparent that no two jurisdictions are the same and, further, that deeper research into each would probably produce useful contributions to judicial thinking generally. For example, there seems no reason in principle why the common law courts of several states should not adopt similar approaches, particularly at a time when many appellate court judges are selected from a regional pool, and when primary legal resources are available on the internet.

It must be remembered, however, that constitutions and statutes may have opened doors, or set hurdles for the application of custom, before the court’s enquiry commences. MacKenzie has given Hawaiian examples of these.³⁵

Law-makers around the time of independence for Pacific Island states were

_{aware that, by perpetuating the English common law heritage, they set up}

34 Durie J, this volume.

inevitable competition with customary law, no doubt expecting that the latter would fade away over time. Methods were devised of ranking customary law against common law, sometimes in a way that set the bar high for custom.

In Samoa, “customs and usages” are defined by statute³⁶ as those being in force at the relevant time, whether as principles accepted by the people of Samoa in general, or as customs and usages accepted as being in force in respect of a particular place or matter. The Constitution also ranked “custom or usage” above English common law and equity, provided the custom or usage had “acquired the force of law in Samoa or any part thereof under any Act or a judgement of a Court of competent jurisdiction”.³⁷ As the customary Land and Titles Court does not publish reasons for its judgments, it would be interesting to see research into how the common law courts deal with custom issues in the relatively few instances in which they are likely to arise.

Papua New Guinea and Solomon Islands each adopted two approaches in similar fashion. Taking the Solomon Islands example, the first approach places hurdles in the way of common law and equity, requiring that they should not be “inappropriate in the circumstances of Solomon Islands from time to time” nor, in their application to any particular matter, should they be “inconsistent with customary law applying in respect to that matter”.³⁸ In the second approach, guidance is intended to be offered by statute as to how customary law, having been awarded a “free kick” against common law and equity, might get past the goal keeper.

The status of customary law may also be measured by the quality of the resources which sustain it as a body of knowledge, together with the accessibility of those resources. The Te Mātāpunenga Compendium will be a high-quality accessible resource. Judge Fox has taken on the task of reviewing the vast range of resources generally, in her comprehensive chapter. Particular attention is paid to historical research and to the growing bodies of material produced and made accessible by the Waitangi Tribunal and the Māori Land Court. She also points to the availability of material relating to Pacific Island customary law. I would add that, over recent years, the Law School at the University of the South Pacific has been the driver behind the development of a growing internet facility, Pacific Islands Legal Information Institute (PacLII), which offers online access not only to the primary statutes and cases of 20

36 Land and Titles Act 1981 (Samoa), s 2.

37 Constitution of Samoa 1962, art 111.

38 Solomon Islands Constitution 1978, s 76 sched 3.2.

Pacific Island states and territories (where one often finds very extensive use of customary law), but also to journals and other law-related material relevant across the region.³⁹ This brings us to the next sub-section.

D. Problems of proof

One of the most significant challenges facing those who wish to see greater use made of custom in the courts of the nation is said to be the requirement that customary law be proved as fact, like foreign law. In New Zealand, Frame notes that it is the duty of the judges ‘to discover and declare” the common law/customary law, that is to say, “the laws and usages of New Zealand”.⁴⁰

However, as Justice Heath puts it, difficulties for custom stem from the fact that custom is generally not recognised as a “free-standing” source of law in its own right.⁴¹ It is essentially a matter of different value systems. The judges are being called upon to find and apply substantive Māori customary law despite their own lack of fluency in Māori language and understanding of Māori culture.

Heath also points to ways in which these drawbacks may be mitigated, but refers to the “cascade of difficulties” involved in seeking to test the evidence of experts and parties, particularly where there are opposing views. From Young’s chapter, one has the impression that a history of inappropriate attempts to test Māori land claims has created an unsatisfactory backdrop for current times.⁴² Joseph brings us into the present through New Zealand legislation which has set up a litigious environment around wāhi tapu. This, as he shows so clearly, has created a rich resource for research into the interpretation of language and proof of custom.⁴³

From the points of view of the litigants (or prosecution and defence), where the onus of proof of custom lies may be crucial. MacKenzie refers to the heavy burden on civil claimants and criminal defendants to establish the existence of constitutionally protected rights in Hawai‘i.⁴⁴

39 See PacLII <www.paclii.org/>.

40 Frame, this volume.

41 Heath, this volume.

42 Young, this volume; and see under section II above.

43 Joseph, this volume.

A 2002 survey of the Pacific Island region concluded that the decided cases disclose several problems with proof of customary law as fact.⁴⁵ It suggested that none of the methods commonly used to prove custom as a fact seem consistently able to do so.⁴⁶ Furthermore, judges were frequently failing to make the distinction between the facts and the law in the case before them. They typically referred both to facts about actual customary behaviour and to evidence about a rule, as custom: both might be so, in an anthropological sense, but only the latter can be law.

The authors of the survey just referred to are also sceptical of a solution requiring judges to take judicial notice of customary law. They point out that it is alien to a judge’s training to search for the unknown, and that the judge will, whenever possible, require the parties to inform the court. Three countries, Papua New Guinea, Tuvalu and Kiribati, require that, for the purposes of pleading and proof, custom is to be treated as law.⁴⁷ It would be interesting to see research on what difference this requirement has made to the operation of the courts of these countries.

The only state to have attempted to tackle the accommodation of customary law directly through legislative action is Papua New Guinea where diversity of sources and problems of proof had long been recognised. The 1975

Constitution directed the adoption by statute of provisions which would implement the concept of an “underlying law”.⁴⁸ The obligation was to be placed upon the National Courts to develop the underlying law “as a coherent system appropriate to the circumstances of the country from time to time”. No legislation was passed, and custom continued to be proved as fact until the Underlying Law Act 2000 articulated a scheme that requires the courts to apply sets of formulae to the matters before them in order to arrive at the underlying law. To mention a few features briefly, customary law takes precedence over common law if the subject matter is known to customary law; customary law is to be ascertained as a question of law; counsel appearing are under a duty to assist the court by producing information and opinion in written form as well as by calling evidence; and the court is given wide discretion as to the writings it may consider, and the evidence and opinion it may obtain of its own motion.⁴⁹ The rest of the region is watching, and research is needed to assess how the concept is addressing the conflicts of norms inherent in the exercise.

45 Jean Zorn and Jennifer Corrin Care “Proving Customary Law in the Common Law Courts of the South Pacific” Occasional Paper Number Two (The British Institute of International and Comparative Law, London, 2002).

46 Ibid, 47.

47 Ibid, 13.

48 Constitution of Papua New Guinea 1975, ss 20, 21 sched 2.

49 Underlying Law Act 2000 (Papua New Guinea), ss 4, 15, 16.

As for those courts which are established and staffed to apply customary law, as a significant or exclusive jurisdiction, there is much scope for study across the region. Fortunately, readers of this volume are provided by Suaalii-Sauni with sharp insights into the manner and style of Samoa’s Land and Titles Court, where custom is a free-standing source and its judges are senior Samoan non-lawyer citizens led by a Samoan judge as President. In particular, Suaalii- Sauni highlights the importance of the assumption of knowledge in a party’s presentation of its case to the Court.⁵⁰ She asks “How does the Court assess the authenticity of a gafa [genealogical record] and its corroborating evidence?”, and concludes that, even after research, it is “hard to tell”. Understanding the significance of what is “not said” in the context of the exercise of pule (authority) and studying key conversations recorded on the Court file are examples of skills and strategies necessary for interpreting Court outcomes. Suaalii-Sauni is concerned that decisions by judges or chiefs should not be “inexplicable”, that the certainty asserted may not in fact exist, and that the discourse may “operate more to confound or subjugate than to empower”. She has lent support to the reminder issued by several writers in this volume as to the difficulty of discerning the genuineness of custom, but her call returns to the context of Samoan custom itself as offering “our closest connection” to working out solutions “as honestly and openly as possible”.

IV.  CONFLICTS OF NORMS, EROSION OF CUSTOM AND THE FUTURE

Taking a regional view in the spirit of the 2007 Symposium, it is clear that the resurgence of pride in ethnic identity, culture and language which accompanied decolonisation and the new status of many Island people gave impetus to research and policy-making that resulted in the formal recognition of customary law in diverse ways, as have been discussed. But the same period also witnessed the promulgation of “universal” norms and the rise of globalisation forces which were inconsistent with or contradicted the cultural norms of kinship-based societies, their leadership traditions, dispute settlement practices and principles of land tenure.

For New Zealand and Hawai‘i, the character and timing of the causes of erosion of indigenous law were somewhat different, the major factors lying in the demographics, politics and economics of minority status. We now see, however, that this status has been a stimulant, particularly to pursue the study of language and custom, and their part in the legal system. On the other hand, many Island states, having secured to varying degrees, recognition of custom

50 Suaalii-Sauni, this volume.

in the legal framework, appeared somewhat complaisant where language and custom were concerned. It was natural that the new states would focus on political and economic issues.

Across the region, evidence of the erosion of custom norms and long-held cultural values is visible everywhere. The most obvious signs flow from the increased autonomy of the individual in a cash economy at the expense of kinship obligation and from demands upon the control and use of customary land rights (as mentioned for Hawai‘i and New Zealand in this volume). Less obvious but perhaps equally challenging in the long run is the issue of gender, together with other grounds for the successful exercise of universal human rights in the face of customary law. Claire Slatter’s regional study demonstrates that the momentum for change in traditional attitudes is gradually building.⁵¹

It seems clear from her account, however, that solutions to conflict are seldom decided in the courts. After all, they are not intended to be agents of change, and the occasional decisions of the courts, often staffed by foreigners, are no measure of progress or lack of it.

To sum up, the prognosis for customary law as presented in this volume is positive. The juggernaut of globalisation will not be the devastating tsunami that some people feared if social and political will can be further engaged and directed. This volume offers the following signposts – and I do not presume to be able to articulate them as well as the authors.

(a) The centrality of language and culture requires no elaboration, and the publication of the Te Mātāpunenga Compendium will provide an accessible resource for all New Zealanders. But the signpost will not then come down, although it might divide to indicate new directions.

(b) In the Preface, Justice Baragwanath called upon Māori to “take positive steps in their own and in the wider public interest”. In what innovative ways might the Compendium be employed?

(c) For the Pacific Island states, the Māori Te Mātāpunenga initiative demonstrates techniques that deserve a closer look. Several countries are already progressing with the study of their own language and culture but cost limits such programmes, and the connection with customary law requires development. The advance in understanding between New Zealand and the Island states will be mutual, as indicated by the Governor- General in his opening remarks at the Symposium and supported by several authors.⁵²

51 Slatter, this volume.

52 Hon Anand Satyanand, this volume; Fox J; Aikman; Slatter, this volume.

(d) Mutual adaptations between customary law and human rights law deserve to be pursued as recommended by Slatter and Aikman. In this respect, further study is required of the resilience of custom and its capacity for change in light of Aikman’s view that custom is not inherently conservative.

(e) The inferior legal status of women in many societies continues to represent a failure that demands redress alongside change in social values.

(f) Techniques whereby customary law and common law might co-exist as sources of law, to be found by the judge rather than proved, might be researched. Such a programme would also examine the function and duty of counsel to assist the court, and what resources and discretion should be available to a judge who is seeking to find the law, and whether this process is satisfactory. Allied to this research might be an examination of how customary law is found in courts working with customary law jurisdictions.

(g) Signposts for the judicial system in New Zealand and in many countries of the region would indicate the need for the education of judges in cultures other than their own, preferably with language training. More broadly, this issue includes “hostility to custom” (Frame et al.) and “institutional unwillingness to let go” (Heath).

(h) Work on the waka umanga concept in New Zealand has drawn attention to a significant sphere of customary law activity beyond the courts, namely customary governance. There is much scope for reciprocal study between New Zealand and Island countries of initiatives where systems of political organisation, economic management and social control are based on custom.

Finally, the call again goes out for research and education. I am sure that the most fitting reward for the authors of the 2007 Symposium collected here would be support for the continuation of their work and for further initiatives in New Zealand and across the region directed towards the greater understanding and usefulness of customary law. Along with this objective will be the mutual appreciation of the uniqueness of each society and polity, and recognition of the value of studying the experiences of others, and lessons learnt.

As Justice Baragwanath put it, “Tūhonohono, or bonding together, expresses perfectly the vision of a cohesive New Zealand jurisprudence”. In the meantime, Te Mātāhauariki Institute has demonstrated that Tūhonohono gives meaning to the joint nature and common spirit of its multifaceted enterprise, the 2007 Symposium published in this volume.