Tikanga Māori is the first law of Aotearoa

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    Here’s a quiz for you.

    Guess the missing word in this paragraph from Te Ara – The Online Encyclopedia of New Zealand. 

    “Māori customary law, parts of the Magna Carta and ordinances made by long-gone provincial governments are all part of the law of New Zealand. The law in New Zealand until 1840 was (missing word beginning with t) Māori and Māori customary law – the customs and methods of governance by which Māori society was ordered.”

    The missing word is tikanga, meaning ‘practice, convention or protocol’.

    In case you think there is anything controversial about these sentences, it might help to know they were written by that well-known foaming radical Sir Geoffrey Winston Russell Palmer KCMG AC KC PC, 33rd prime minister of New Zealand and former minister of justice.

    I’ll just digress here to to say that, many years ago, my boyfriend collided with a slim wavy-haired man in a dull grey raincoat in the door of a chemist shop in Lambton Quay. It must have been sometime between August 1989 and September 1990, because when I asked said boyfriend if he knew who he had just bumped into, and he said… “err…no.. should I?” I said, “that was literally the prime minister of New Zealand!”

    This goes to show how unassuming Geoffrey Palmer is, even when he was nominally running the country, in case anyone took me literally when I called him a foaming radical.

    This month, blogger and King’s Counsel Gary Judd filed a complaint with the Government’s Regulations Review Committee to protest incoming compulsory tikanga Māori studies in New Zealand law schools. (To clarify, tikanga Māori in various forms has been taught in these schools for years.)

    The New Zealand First party came out in full-throated support, calling tikanga Māori studies “woke cultural madness”. Presumably rubberstamped by party leader and deputy Prime Minister Winston Peters, their press release roasted the Dean of AUT Law School for calling Judd an ‘old racist dinosaur’. 

    All drama aside, Judd, in shaking his stick at the sky, seems to be fighting Palmer’s definition of common law.

    As Sir Geoffrey explains in Te Ara, common law is not static, but “built up through legal decisions rather than by legislation. Doctrine accumulates over time, which means the past greatly influences the future.”  

    Victoria University Professor of Law Dean Knight was one of many experts who responded thoughtfully to Judd. 

    “The complaint against the Council of Legal Education’s incorporation of tikanga Māori into compulsory aspects of the law degree is bound to fail,” he tweeted. “Legal education reflects the legal order and there is no doubt that tikanga interacts with and influences state law nowadays… Of the numerous cases I’ve seen argued in various courts over the last year, I can’t think of one where it wasn’t mentioned.”

    Tikanga principles are imbedded in the Resource Management Act, the Property (Relationship) Act, the Oranga Tamariki Act, the Marine and Coastal Area (Takutai Moana) Act, among others.

    An ignorance of these principles would deprive legal graduates of an understanding of the first law of Aotearoa, relevant in cases even where there is no Māori party involved. When lawyers and judges grasp tikanga values it helps everyone, not just Māori. 

    The New Zealand Supreme Court showed this in a fascinating decision to quash the conviction of Peter Ellis in 2022, even though he was neither alive, nor Māori. Ellis had been convicted in 1993 of sexual offending against children but died months before his 2022 appeal could be heard. Ordinarily his death would have closed the case, but when seen through a ‘tikanga lens’, the effect of Ellis’s catastrophic loss of mana on his family and community needed to be taken into account.

    The decision to clear the name of a dead man was described by Kennedy Warne in E-Tangata as revelatory and profound. 

    “Ellis as an individual has mana,” he wrote, quoting an expert involved in the case. “The victims and the whānau also have mana.” “Death does not extinguish that mana,” explained Supreme Court Justice Joe Williams in the published decision, “because mana is not an individualistic phenomenon. It exists because of relationships with others in accordance with the principles of whanaungatanga (kinship) and whakapapa. Such mana-sustaining relationships do not end at death, even if they are changed by it.”

    In another landmark case, Māori activist Mike Smith won the right to sue seven of the country’s biggest companies, responsible, he says, for a third of New Zealand’s carbon emissions, causing climate change and ensuing damage to his rohe. The New Zealand Supreme Court unanimously ruled that Smith should be allowed to test this case in court – a case based on tikanga and Smith’s duties as kaitiaki.

    Judd’s tikanga-free law grad would also be at a complete loss in the recent case of Protect Pūtiki’s environmentalist Māia Weiss, found guilty of trespass last week (story page 10). Her lawyer argued that Weiss was fulfilling her duties as kaitiaki, through whakapapa, under tikanga Māori to protect the bay and its threatened species. 

    Most of us understand what these words mean. It would be a travesty if the law did not.

    • Jenny Nicholls

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