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Benton, Dr Richard A --- "Editor's introduction" [2011] NZYbkNZJur 3; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence ix

Last Updated: 25 April 2015


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.


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.


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.


xii Yearbook of New Zealand Jurisprudence Vols 13 & 14

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