New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 25 April 2015
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
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
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
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
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
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
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.
questions about the conservative nature of custom, Helen Aikman has pointed to
the Law Commission’s recommendation
against the codification of
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
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
of certainty” that such choices may
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
and assertions of authority, pule. In the course of her wide-ranging
discussion, Suaalii-Sauni has presented evidence of scholarly
the Samoan language which fits well with the objectives espoused by Te
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.
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
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
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)
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
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
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
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
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.
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
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
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
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’
(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
Accordingly, there is a very different story to tell for each society and
polity. Readers are indebted to contributors to this volume,
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
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
B. Sources of law, judicial systems and spheres of operation
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
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
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
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
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,
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
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
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
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
(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
(3) recognises some unwritten customary personal law in relation to some
marriages and adoptions – eg Papua New Guinea, Solomon
(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,
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”
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
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
33 Heath J, this volume; Farrar, this volume; and Joseph, this
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
Waka Umanga Bill, introduced in 2007, is followed by a saddening
“Postscript” account of its demise in 2009, for which
responsibility should be widely shared.
C. Recognition of customary law and its ranking in the courts of the
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
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
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
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
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
against common law and equity, might get past the goal
The status of customary law may also be measured by the quality of the
resources which sustain it as a body of knowledge, together
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.
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
relevant across the region.39 This brings us to the next
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”
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
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
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
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
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
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
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
“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
closest connection” to working out solutions “as honestly and openly
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
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
promulgation of “universal” norms and the rise of
globalisation forces which were inconsistent with or contradicted the
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,
Island states, having secured to varying degrees, recognition of
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
To sum up, the prognosis for customary law as presented in this volume is
positive. The juggernaut of globalisation will not be the
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
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
at the Symposium and supported by several
51 Slatter, this volume.
52 Hon Anand Satyanand, this volume; Fox J; Aikman; Slatter, this
(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
(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
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
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
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.