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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
EDITOR’S INTRODUCTION
The casual reader of this Yearbook could well imagine that they had entered
Dr Who’s Tardus. The volume is the issue of the Yearbook of New
Zealand Jurisprudence for the years 2010-11, and consists of a set of
articles stemming from an invitational symposium on Custom and the State which
took
place in July 2007; all the chapters have, however, been revised by their
authors since they were originally presented – some
indeed are new works
exploring the original themes – and many contain references to works
published or websites accessed up
to the end of 2011. A word of explanation is
therefore in order!
The symposium from which these papers are drawn was held to mark the
completion of the Foundation for Research, Science and Technology
(FRST)- funded
phase of the University of Waikato’s programme of research into Laws and
Institutions for Aotearoa-New Zealand,
conducted under the auspices of the
University’s Mātāhauariki Institute. This project had attracted
10 years of continuous
support under the Public Good Science Fund, which in
itself was a unique accomplishment and a tribute to the quality and importance
of the research conducted. The symposium highlighted in particular the
Institute’s work and interest in the intersection (and
integration) of
customary and state law, and was an opportunity to present the first draft of
its major compilation of information
about Māori customary law, Te
Mātāpunenga, to an audience of jurists and other scholars from New
Zealand and the South Pacific.
Although early publication of the symposium proceedings proved impossible,
authors of key papers were informed that publication was
delayed, not abandoned,
and the invitation from the publishers of the Yearbook of New Zealand
Jurisprudence to prepare them for the 2010-11 issue was welcomed and
enthusiastically accepted.
The Symposium was structured around three themes, still reflected in the
chapters in this Yearbook: finding Māori custom and the State
(contributions by Alex Frame, Wayne Rumbles, Richard Benton and John
Farrar), understanding custom (Helen Aikman, Tamasailau Suaalii-Sauni,
Claire Slatter and Melody MacKenzie), and applying custom (Taihakurei
Durie, Robert Joseph, Paul Heath, Grant Young and Caren Fox). The papers and
discussions were integrated and commented
on by Guy Powles, who has contributed
the overview chapter with which this volume concludes.
The Mātāhauariki Institute itself was also a focus of attention at the symposium, reflected in this volume by the prefatory remarks by Sir Anand Satyanand and Sir David Baragwanath, and the chapter on the history of the institute by its former Director, Dr Alex Frame, and his associates. In this
x Yearbook of New Zealand Jurisprudence
Vols 13 & 14
context, it is important also to note that the symposium was jointly hosted
by the Waikato Raupatu Land Trust’s Tainui Endowed
College, and was
attended by prominent members of the Waikato confederation of iwi. These aspects
of the symposium were referrred
to in the opening remarks by the
Governor-General, and the oral presentations of many participants. The Fijian
scholar Claire Slatter
reflected the sentiments of participants generally in the
introduction to her presentation:
I wish to acknowledge the Tainui people, on whose land we stand, our hosts in
the Te Matahauariki Institute, the Governor General,
Judge Eddie Durie and other
members of the judiciary, members of the legal fraternity, academic colleagues,
and friends, kia ora,
bula vinaka and namaste. I am honoured to be amongst you
today, and I thank you for your kind invitation to speak at this important
symposium which, among other things, has given us privileged first access to the
results of the excellent work of the Te Matapunenga
project – the
comprehensive compendium of references to the concepts and institutions of Maori
customary law – I congratulate
Dr Alex Frame [Director of the Institute]
and his team on their achievement.
The Symposium concluded with an overview of the themes and ideas to emerge
provided by Guy Powles, of Monash University, who generously
agreed to provide a
similar overview of the papers published in this volume, along with his own
contribution, widening the discussion
to include Pacific jurisdictions other
than those referred to directly by most of the other contributors. There is no
need to duplicate
Dr Powles’ overview here, and I will confine my own
remarks to an aspect of just one of the chapters included in the volume.
This is
the very important presentation by retired Justice Sir Edward Taihakurei Durie
on the Law Commission’s proposals in
2007 for the statutory recognition of
a new kind of Māori business collective to be known as “Waka
Umanga”. This
origin of this proposal was characterised by one prominent
Māori Member of Parliament as:1
The intelligentsia sitting with their flat whites, pontificating about how
they can help the lumpen proliteriat! That is how the Waka
Umanga (Māori
Corporations) Bill came about.
Others, however, considered it to be a well-considered proposal designed, in
Justice Durie’s words, to create an atmosphere in which:
The promoters of tribal corporations may now be obliged to devise and comply
with democratic formation plans with transparent and
just processes, all of
which may be vetted by the Māori Land Court.
1 Hon Tau Henare NZPD Vol 644 11 Dec 2007 13858–81 at 13858.
2010 & 2011 Editor’s Introduction
xi
The politicians decided otherwise, but it remains an important proposal,
perhaps ahead of its time, the discussion of which is certainly
an appropriate
subject for inclusion in this Yearbook of New Zealand
Jurisprudence.
Format
The format of this publication generally follows the guidelines established
by the New Zealand Law Society. Citations to statutes
and court cases have
generally been left in the conventional format of the appropriate jurisdiction
(United States or New Zealand).
Words from Māori, Samoan and Hawaiian have
not been italicised in the authors’ text. Orthography raises complex
questions,
as customary practice varies among jurisdictions. The general rule
has been that in direct quotations the orthography of the original
source is
retained, and in personal names the preferred usage of the bearer has been
respected. In Māori words, vowel length
is generally marked by the macron
except for a few words where a “double vowel” is commonly used in
English or Māori
writing (e.g. “waahi tapu” as an alternative
to “wāhi tapu”). In Hawaiian and Samoan the authors have
been
left to follow their normal orthographic conventions, with direct quotes and
names treated as for Māori. The various papers
in this collection are
referred to interchangeably as “chapters”, “articles” or
“contributions”.
Another slight departure from the norm is the
inclusion of short biographies of each author at the end of the volume, instead
of
the one-line note about their current position at the beginning of each
article.
Acknowledgments
This work is the product of the collective effort of many people over a long
period of time. Special thanks are due to my colleagues
in Te
Mātāhauariki Institute, Robert Joseph (Associate Editor of this
volume), Wayne Rumbles and Alex Frame for keeping
this project alive in the
consciousness of the Faculty of Law, Waikato University, and their direct
assistance in ensuring that the
final product sees the light of day. The support
of the Dean of Law, Professor Bradford Morse, is also greatly appreciated. Guy
Powles
and Alex Frame have given invaluable assistance in carefully reading and
commenting on many of the manuscripts. I am also grateful
to Janine Pickering,
Administrative Assistant at the Faculty of Law, Brian O’Flaherty (copy
editor) and Amanda Colmer (design
and production editor) for their indispensible
help in ensuring that this work has proceeded smoothly through the various
phases
of editing to production. Finally, I must express my gratitude to the
authors for superb cooperation in enabling us to meet a very
tight deadline
after many delays in transforming the idea of a publication into a
reality.
R.B.
xii Yearbook of New Zealand Jurisprudence Vols 13 & 14
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