The Peter Ellis case and Māori customary law

Wednesday, 8 July 2020

Justice Joe Williams has written that tikanga’s view on mana might allow an appeal right, designed to repair a wrong to the mana of an individual and family, to continue in the courts even after the appellant had died.

The Supreme Court could be on the verge of another milestone development in our legal system. MARTIN VAN BEYNEN reports.

It seemed a strange legal pairing.

The Christchurch Civic Creche case and Māori traditional rules and tenets called tikanga.

The combination was first raised when lawyers gathered in the Supreme Court in Wellington in November to argue about whether Peter Ellis’ appeal against his child abuse convictions in 1993 could continue after his death.

Ellis, who fought for decades to clear his name, succumbed to bladder cancer in September, aged 61, after the Supreme Court had given him leave to appeal.

* Supreme Court back to hear tikanga argument on Peter Ellis appeal

* Justice Joseph Williams - first Māori appointed to the Supreme Court bench - awarded knighthood

* Peter Ellis appeal derailed by legal curveball on possible tikanga Māori approach

Lawyers had spent months preparing submissions for the November hearing, but none referred to tikanga. Supreme Court Justice Susan Glazebrook* first brought up the issue which was then expanded on by Justice Joe Williams, the former chairman of the Waitangi Tribunal.

Williams, who has written extensively about tikanga and its place in New Zealand law, pointed out tikanga held that a person’s mana (prestige, authority) continued after death and the mana extended to the wider whānau. This, of course, is not a foreign concept to Pākehā.

But Williams suggested tikanga’s view on mana might allow an appeal right, designed to repair a wrong to the mana of an individual and family, to continue in the courts even after the appellant had died.

The lawyers were sent away to prepare further submissions, which were heard with mihi and karakia last month. Both lawyers for the Crown and Ellis argued that tikanga supported their respective positions.

The Supreme Court reserved its decision.

If the court decides that tikanga has a major bearing on the argument about whether Ellis’ appeal should go ahead, it will represent a landmark decision. It will be the first time in the last 100 years that tikanga has been applied to an essentially Pākehā common law dispute.

Such a decision could potentially send New Zealand law in new and uncharted directions.

It is not hard to see the practical challenges that recognition of unwritten tikanga would entail. Iwi have their own slant on particular rules and values and experts can be hard to find and authenticate.

In the Ellis case, both Crown and defence lawyers held a two-day wānanga to nut out the relevant tikanga rules and how they could be applied. The report was then supplied as advice to the Supreme Court to make the final decision.

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Tikanga is derived from the Māori word tika, meaning right or correct, and means the customary rules for regulating human behaviour that have been honed over time.

In a widely cited article published in 2013, Justice Williams (then a High Court judge) explained that Māori society was organised according to “enforceable customary legal norms” that he believed were “a necessary and inevitable expression of self-determination”.

Peter Ellis died before his appeal against his child abuse convictions in 1993 could be heard.

In his paper, Justice Williams said tikanga was law designed for small, kin-based village communities and was as much concerned with peace and consensus as it was with the level of certainty expected from judges in a complex, non-kin-based community.

Values were more important than directives because an outcome considered unjust in tikanga terms would be rejected by the disputants and their extended family.

He accepted there was considerable debate about what core values “the holders of the first law brought, adapted and still hold” but outlined his own list that included whanaungatanga (extended family, relationships, responsibilities), mana (authority, prestige) and utu (reciprocity, obligation).

Justice Williams wrote that the country had been through two previous phases of law-making. The first was the rules developed by the first inhabitants of Aotearoa, and the second, those brought in and advanced by the settlers and their descendants.

He identified a third phase, when tikanga Māori fuses with New Zealand’s common law tradition to form a hybrid law of Aotearoa that could be developed by judges, case by base.

Eurocentric statute law and English common law – a body of rules stemming from English customary practices that evolved by the courts deciding disputes – has dominated the modern New Zealand legal system, despite Te Tiriti o Waitangi.

A change began in the 70s with recognition of the Treaty and aboriginal title in land. Māori concepts such as kaitiakitanga (guardianship), whāngai (Māori adoption practice) and taonga (treasures) were incorporated into resource management, and land and matrimonial property legislation.

Te Urewera national park was given a personal legal entity in July 2014, with “rights, powers, duties, and liabilities”, and in 2017 the Whanganui River became a legal person.

However, it wasn’t until the Takamore case in 2012 that the Supreme Court explicitly recognised that tikanga was part of New Zealand’s common (as opposed to statute) law.

James Takamore was a Christchurch school caretaker who died suddenly, aged 55, in 2007. His Tūhoe family travelled to Christchurch and after a fraught family meeting departed with the body, burying Takamore next to his father at the Kutarere Marae in Ōpōtiki.

The court had to decide if tikanga controlled Takamore’s final burial place or whether the executor under his will, his widow, Denise Clarke, should make the call.

All five judges of the court accepted tikanga was part of the common law and some held tikanga had the ability to significantly change New Zealand’s common law. The court decided the Tūhoe burial custom was reasonable and enforceable but in the end found that Clarke, as executor, retained the right to decide where her partner should be buried.

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Jacinta Ruru, a law professor at Otago University specialising in tikanga, says “being inspired by tikanga is a good way to ensure the continued development of the Aotearoa common law” and displays maturity as a nation.

“There are certainly sensitivities here, but if our state legal system can open up and learn about the Māori legal system, then this is a good thing. Our two legal systems – Māori and state – should be able to talk to one another.”

She sees a potential Supreme Court decision to allow the Ellis case to proceed despite his death, on tikanga grounds, as the slow evolution of a distinctive law of Aotearoa.

The New Zealand legal system’s recognition of Māori law was not new, although in the past it tended to be recognised only so it could be “squashed”.

The fact the highest court in the land has asked for submissions on tikanga is an important milestone, she says. Normally it was left to lawyers to try to persuade the courts tikanga was relevant.

Another tikanga specialist, Associate Dean of Waikato University Law School Linda Te Aho, says the extention of tikanga to Pākehā would be a “major leap forward”.

“Anything the Supreme Court does is very influential in terms of how arguments will be framed in the lower courts.”

Te Aho says finding a consistent interpretation of tikanga and the difficulty in identifying experts is a frequent objection.

“It’s often said, however, that regardless of the iwi/hapū, there are values or principles that underpin tikanga that are universal. As first-hand experts die out, there is a growing need for process to reclaim lost knowledge. A superficial knowledge is not enough.’’

Ruru says that although tikanga differs slightly from iwi to iwi, the New Zealand courts are already generally well versed in it.

The Māori Land Court and the Environment Court regularly dealt with tikanga and received expert evidence from Māori specialists.

The Te Ture Whenua Māori Act (the Māori Land Act) 1993 had a mechanism for the High Court to state any question of tikanga to the Māori Appellate Court, which had expertise in tikanga Māori.

Difficulties such as uncertainty of the law and the depth and complexity added by a new body of customary jurisprudence should not prevent the common law from developing, she says.

“… the common law of Aotearoa is different to the common law of other countries. Our common law must reflect the values of Aotearoa New Zealand. Engagement with tikanga is essential for the flourishing and robustness of our common law.

“I think it is really important to recognise that there are two functioning legal systems in NZ. One is the Māori legal system. The other is our state legal system, which includes the common law. Our state legal system is mostly entirely influenced by what happened in England hundreds and hundreds of years ago. We should open our eyes and hearts to also be influenced by the first legal system of this country.”

Stephen Franks is sceptical. “Tikanga is easily invented to suit,” he said.

Te Aho says it’s possible for the common law to absorb a new body of jurisprudence but it will take time and presently expertise is lacking.

“But law schools are working on this … A host of new District Court appointments promoting diversity provides a level of optimism, but the higher courts are slow in following this trend.”

The country is already moving towards a hybrid of tikanga and English common law that would represent a third stream of law, says Ruru.

The judiciary and the profession have been seeking ways to upskill for years, she says.

She is working with other Māori law academics to produce a report that makes “a preliminary call to revamp the legal profession and importantly legal education to start to deliberately move towards a bijural, bicultural and bilingual system”.

Te Aho believes Justice Williams is key to increasing the influence of tikanga in New Zealand law, and does not believe the application of tikanga in the Ellis case will stir up the sort of “racist” backlash seen after the Takamore decision and the Ngāti Apa decision that prompted Helen Clark’s Government to pass the seabed and foreshore legislation.

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Lawyer Stephen Franks, who was an ACT MP between 1999 and 2005 and stood for National in 2008, sees the greater influence of tikanga as a dangerous trend that undermines democracy and the rule of law. A hybrid of tikanga and common law would be inconsistent and uncertain, he says.

“What we are doing is licensing our judges to decide cases on how they feel and not according to law. Because it is unwritten, tikanga is easily invented to suit and you can’t subject it to the normal rationality constraints.”

Those sorts of constraints included the concerns of minimising cost, ensuring pointless litigation wasn’t encouraged and creating the right incentives to avoid contention.

“The common law evolved with a whole lot of very pragmatic rules made by judges, the elite of the intelligentsia, who denied themselves the freedom to make moral judgments.

“They said if we are going to rule by law we have to know what the law is in advance, and any person has to be able to read it and know what is lawful and not lawful.

“There are lots of things in common law that said we are not here to ensure that we feel good at the end of the case. We are here to ensure the law is predictable, certain, coherent.

“My problem with tikanga is that it’s from a society that regards the fight as just as important as the outcome. That bruised feelings are just as worthy as tangible damage. You can have a society that is focused on grievances and the past or you can have a society that says much crying over spilt milk doesn’t help.”

He believes tikanga gives judges a licence to dispense with certainty because all of a sudden they had a moral justification for becoming “our priests”.

“To know what is lawful you will have to go and ask a judge, the great ruler, which is typical of the tribal society.

“The joy of making law is really enticing to anyone who gets power. It takes a great self-denial for a judge to say we apply the rule, we don’t make it, that is for parliament.”

The injection of tikanga signalled a huge change to that principle.

“The only avenue for tikanga to get into our law is through the judges, so that is what is happening… Who are the authorities? Are they people who deserve mana or are we just deciding to give them witch doctor status? Who tests their claims are right?”

He believes the courts will skirt around the edges of tikanga and avoid its core elements of utu, whakamā (shame) and muru (reparation by the wider group).

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In concluding his 2013 paper, Justice Williams ponders the next steps for tikanga and New Zealand’s legal system and wonders whether judges will become agents for change as they become better trained to address tikanga.

“Will the first law evolve in the way that the common law did: from a system of local custom to a more positivist system of judge-made law?

“These are issues judges and the Māori community will be working through over the next generation. Lex Aotearoa is very much alive. It is still fragile, but its survival is more certain now than in the past. It is demanding that we change to address its challenges. I hope we Aotearoans are up for it.’’

* An earlier version of this story incorrectly said that Justice Williams had first raised the issue.