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Baragwanath, Hon Justice Sir David --- "Preface. Tuhonohono: Custom and the state - celebrating the launch of Te Matapunenga" [2011] NZYbkNZJur 2; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence v

Last Updated: 25 April 2015





The week of 22 June 2007 was a time for treble celebration. That day and over the following weekend we recognised the brilliant success to date of Te Mātāhauariki and looked to what we were sure would be its exciting future; the following Friday there was a further event to mark the 20th anniversary of the Māori Council case; that evening Te Mātāpunenga ran down the skids into the water to begin its voyage.

The title of the symposium of which this issue of the Yearbook of New Zealand Jurisprudence at last provides a permanent record – Custom (which alludes to Māori custom) and the State – took me to the sometime New Zealander Karl Popper who, with his intellectual genius tempered by exposure as a Jew to the injustice of Hitler, analysed the raison d’être of the state. In his celebrated Open Society and its Enemies2 he argued that it is simply to ensure justice: that the strong do not bully the weak. That should be the function of the laws and institutions of the state.

But as all of us know so well, it is never enough for minorities – even those equipped with a solemn Treaty promise – to sit back and expect their rights to be protected and their culture promoted. They must take positive steps in their own and in the wider public interest. That truth is what the Māori Council case was about. It is also, in my view, a major element both of the original justification for Te Mātāhauariki and of its stunning vindication today in Te Mātāpunenga.

1 The edited text of a speech by Justice Baragwanath at the opening of the Tūhonohono symposium, marking the release of the pre-publication draft of Te Mātāpunenga on CD to all symposium participants. The publication of the work in final, printed form is expected in 2012–13.

2 The Open Society and its Enemies: The Spell of Plato (Vol 1, Routledge, UK, 1999) at 111.

vi Yearbook of New Zealand Jurisprudence Vols 13 & 14

Schiller wrote “die Sprache ist der Spiegel einer Nation”: language is the mirror of a people. In 1985, appearing before the Waitangi Tribunal as it heard the Māori language claim, Sir James Henare echoed that sentiment in what are now two of New Zealand’s official languages:3

The language is the core of our Māori culture and mana. Ko te reo te mauri o te mana Māori. (The language is the life force of the mana Māori.) If the language dies, as some predict, what do we have left to us? Then, I ask our own people who are we?

Conquest by the English language of aviation, business and now the internet has been due to its accessibility in written form. The burgeoning of English has created a cultural neocolonialism more potent and long-lived than the British Empire which did so much to develop it, including the invasion of the Waikato.

It is therefore wholly appropriate that, as a counter-attack to the cultural and intellectual equivalent of the Land Wars, this mighty Compendium of References to the Concepts and Institutions of Māori Customary Law should be launched in the heart of the Kīngitanga, on Raupatu land at what was a military base and is now The Tainui Endowed College. Wouldn’t Sir Robert be pleased!

While diminution of a language diminishes both the people and their culture, the opposite is equally the case. Professor Frame’s lucid expression of the purpose first of Te Mātāhauariki and now of Te Mātāpunenga recounts the establishment of the Institute:4

to explore the possibilities for the evolution of laws and institutions in New Zealand to reflect the best of the values and concepts of both founding peoples of the state, Māori and European.

The name Tūhonohono, or bonding together, expresses perfectly the vision

of a cohesive New Zealand jurisprudence.

Every day in my court we see the evidence of the social and economic consequences of the monoculturalism which is all too evident in this address. But as those of us brought up in English-New Zealand law slowly unwrap our xenophobic jurisprudential mummy-casings we are coming to appreciate the truths of which the Compilers write in their inspirational Introduction.

  1. Report of the Waitangi Tribunal on the Te Reo Māori Claim (WAI 11, Waitangi Tribunal, Wellington, 1986) s 6.1.21.

4 “A Short History ...”, this volume.

2010 & 2011 Preface vii

My initiation was at Te Hāpua two decades ago this week. The elders of Muriwhenua courteously and patiently began to introduce me to the overriding of their culture by the European juggernaut, which had used monocultural laws and institutions to sweep away the fishing rights their ancestors had enjoyed for a millennium. Since then much has changed. So it was my privilege last year, chairing the Rules Committee, to introduce Rule 65A of the High Court Rules implementing the right to speak Māori in court, belatedly acknowledged by the Māori Language Act 1987.

But that is small fry. For the past eight years, under the visionary leadership first of Judge Brown and later of Professor Frame, the Editorial Board consisting of Alex Frame, Richard Benton and Paul Meredith has been working on the big one. Like James Murray’s Oxford Dictionary, Te Mātāpunenga includes the labour of others. But those others are not mere hoarders of information but scholars in their own right, Māori and Pākehā. They include Dr Tui Adams, the late Nena Benton, Tonga Karena, Joeliee Seed-Pihama, and Wayne Rumbles, backed up always by the great administrative support of Sue MacLeod. The quality and quantity of their work on this and other projects is outstanding.

For those of the Advisory Panel it has been an immense privilege and a delight both to meet the intellectual leaders of our society and to see something of the work in progress. One of our number has been of great assistance to the Team – Dame Joan Metge.

Unlike any dictionary, it is not confined to words and a sterile account of their meaning and derivation. Instead the authors have applied the lesson of Bentham, adopted by Professor Hart in his essay “Definition and Theory in Jurisprudence”5 and by the New Zealander Professor Donald Harris QC in “The Concept of Possession in English Law”.6 Legal concepts cannot be defined, but only described by reference to illustrative cases. One or two judges have overlooked that lesson, by trying to define Māori culture with the help of conventional dictionary definitions.

Te Mātāpunenga now comes to our aid by providing for each entry its context, which at last Western jurists are coming to realise is critical to understanding any legal thing. That is the state of the art.

But it does more. Vitally, it makes Māori language and concepts accessible to scholars and the general public alike. Like Te Māori – the Exhibition that transformed Western appreciation of Māori art and craftsmanship – this great treasury of historical materials brings the Māori world alive for others.

5 (1954) 70 LQR 37.

6 Anthony Guest (ed) Oxford Essays in Jurisprudence (Clarendon Press, Oxford, 1968) at


viii Yearbook of New Zealand Jurisprudence Vols 13 & 14

The Māori artefacts so prominent in the grand new Musée du quai Branly in Paris, as well as in the British Museum and in other great galleries, are now acknowledged as a major contribution to world culture. In future scholars and general readers alike will be able, internationally, to add the wealth of information and erudition of this volume to their intellectual store. My expectation is that, like Sir George Frazer’s Golden Bough in 1890 with its introduction to new experiences and ideas, the work will capture the public’s imagination. Lacking the capacity to express the sentiment in te Reo, I adopt Keats’ way of putting it:7

Then felt I like some watcher of the skies

When a new planet swims into his ken;

Or like stout Cortez, when with eagle eyes He star’d at the Pacific – and all his men Look’d at each other with a wild surmise – Silent, upon a peak in Darien.

Even more important, in my view, is the message Te Mātāpunenga has for Māori. This is an outstanding addition to the list of great Māori works of scholarship. Some 12,000 miles and 400 years away Pākehā New Zealanders identify with Shakespeare’s vision – take his “Sir Thomas More’s” account of refugees:8

Grant them removed, and grant that this your noise Hath chid down all the majesty of England; Imagine that you see the wretched strangers,

Their babies at their backs and their poor luggage,

Plodding to th’ ports and coasts for transportation...

used to lend emphasis to a recent immigration judgment.

Like the role of great literature for the Western world, Te Mātāpunenga shows to Māori what they have done, what they can do, and indeed what they are. Its account of Māori achievement will add to the confidence, self-esteem and vision of the young Māori whose sense of full participation in all that is good in New Zealand society is so crucial to its future and to theirs.

7 “On First Looking into Chapman’s Homer” (October 1816).

8 Sir Thomas More, Act II, Scene IV. (The play is ascribed in part to Shakespeare.)

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