Marae can be our courthouses

Nin Tomas was the law academic and force of nature who made a lasting impact on more than a generation of students and colleagues at Auckland and Waikato Universities, until her death, at 57, eight years ago.

Nin took a special interest in the injustice of laws that affected Indigenous peoples not just in Aotearoa but much further afield, such as in Canada, the USA and Chile. She was also a strong advocate of Indigenous media especially, and she chaired the Mana Trust which gave birth to E-Tangata in 2014.

Every year, Auckland University holds a memorial lecture in Nin’s honour. This year’s address was delivered by the president of the Law Commission, Amokura Kawharu.

In this conversation with Connie Buchanan, Amokura explains how arbitration law could be used as a model for Māori dispute resolution, saying it offers a path for tikanga to be used in its own right, and to have the outcomes respected by state institutions.  

 

Nin Tomas was someone who really bristled at the perception that Māori resolve disputes only through endless kōrero — that we just sit around talking forever, passing along a peace pipe.

She bristled at that because it’s patronising. It overlooks the important role that people, especially our rangatira, have always played to generate consensus and make decisions.

Nin, together with Khylee Quince, did some trailblazing work in the 1990s to counter that stereotype. Together, they wrote about concepts like whanaungatanga, whakapapa, aroha, mana, utu, tapu, and other tikanga that were pretty much unheard of in the legal profession back then.

Their work explained how Māori societies would use those tikanga to respond to all kinds of incidents like theft, trespass, insult, rape, and murder, and to resolve disputes and restore relationships to a state of balance.

Nin and Khylee explained how Māori society is defined by the continuation of relationships across generations through the principle of whakapapa. They showed how the kinship obligations of whanaungatanga provided a comprehensive framework for social interactions.

They also talked about how hapū leadership had a central role in resolving disputes, using the relevant tikanga of atawhai, aroha and manaaki to promote empathy, the obligation to protect communal wellbeing, and respect for all parties involved.

Our courts and lawyers are much more familiar with many of these terms today. But one of the accepted risks of working with tikanga in the court system is that, as lawyers, we still start with the usual way of doing things, then try to find an equivalent idea in te ao Māori.

So we look for something that matches what we already know, rather than thinking about things from a totally Māori point of view. One of the key points that Nin and Khylee made is that tikanga is a whole package — you can’t just use mana, or whatever else, in isolation, to find your answer.

While there’s no question that tikanga can operate as law, capable of addressing the full range of affronts to human dignity, our legal institutions within te ao Māori have been degraded for years through colonisation.

For decades, practically, we’ve had to rely on the courts to provide answers. And because of that degradation, we can’t easily switch back now to tikanga to resolve all our contemporary problems.

Of course, we wish that degradation hadn’t happened. But we can either look at the past and see what was taken, or we can work to rebuild, using the tools at our disposal today.

My legal specialty is arbitration. It’s a word that most people don’t really understand, but its roots are in Latin. An arbiter is simply a person who decides.

Historically, arbitration developed in European law in medieval marketplaces, where leaders of a trade were asked to intervene in disputes. Everyone involved agreed to the decision being binding. The leaders were the people with the most experience and knowledge within their sectors, so the process worked because of the respect accorded to them. It was one of the things that helped to hold the communities together.

So, I’ve been thinking about what exists in arbitration law that we can use to develop and strengthen legal institutions within te ao Māori, so that we can use our own systems for our own issues, and have the outcomes respected by state institutions.

Oddly enough, I think arbitration law provides the ability to help Maōri realise that ambition.

That’s because part of the tradition of arbitration is to let parties choose their preferred law to apply to their relationship. In commercial arbitration, for example, the parties sometimes decide to apply international business principles rather than national law.

It’s very relevant how commercial parties, particularly in international arbitration, have been able to develop an entire non-state infrastructure to resolve their disputes.

Another example is the Beth Din courts in England which make binding decisions by applying Jewish law. They’ve operated in this way for over 100 years.

So, my question is, why shouldn’t we be thinking about something like this for Māori? For example, for resolving disputes about the determination of mandates, or the creation and operation of new governance arrangements. Or to address “mana” disputes among hapū and iwi. The courts themselves are, understandably, showing some unease when confronted by such quintessentially Māori issues.

Under arbitration law, we could choose tikanga as the law applicable to the dispute. Then we could appoint pūkenga, who are experts in tikanga, as arbitrators to resolve it.

Of course, arbitration law is still state law. Using it in this way raises the question of whether we’re realising tino rangatiratanga, given we still have to rely on legislation.

I think there’s an answer to that in the way that we deal with foreign arbitrations. New Zealand is a party to an international treaty known as the New York Convention 1958. The convention obliges New Zealand courts to recognise foreign arbitration awards. There are only very narrowly prescribed grounds for non-recognition. They concern natural justice protections and allow courts to refuse to recognise decisions that conflict with public policy.

By applying an approach like this, I think you could have a model for Māori arbitration that is not dependent on state law. I think it’s doable, using frameworks and practices that already exist.

There are, of course, some big challenges. We’d need to build our capacity and capabilities first, within the existing legislative framework. There are hardly any Māori arbitrators. We’d also need to develop a central institutional mechanism to provide proper support, and to ensure that outcomes can be recognised by the courts. In each case, we’d need a really good tribunal which would comprise people who are experts in tikanga and also experts in arbitration. There’d be an enormous amount of work to do.

But what we stand to gain is enormous too. We’d have the ability to apply tikanga to a dispute without having to work through its relationship to, or interaction with, state law. It would apply in its own right. That would give tikanga the respect and tino rangatiratanga that it deserves.

Then we’d also be able to choose to apply New Zealand law as well, if there are potential gaps, and then choose which law has priority when there’s a conflict.

Proceedings could be conducted entirely in te reo Māori, or in whatever combination of languages the parties preferred.

Most significantly, I think, we could choose marae as our venue. This would centre the resolution of our own disputes in the most important place within our own communities. For Māori, decisions made on marae generally carry more weight than decisions made anywhere else.

At the outset, and before we even got to talking about the dispute, there’d be an opportunity for everyone to identify themselves and relate to each other in the normal way that happens on marae, which is a process that, in itself, tends to support ongoing relationships and durable outcomes.

Our wharenui serve as repositories of knowledge and whakapapa. Having proceedings take place on marae would emphasise our accountability to whakapapa, because you’re right there, where the past and the future are staring you in the face.

I think it would promote the acceptance and effectiveness of the process, by reminding participants how their actions are measured against the interests and values of past and future generations. All these things reflect the central idea that tikanga is a relational model of interaction.

Courtroom procedures, however, are deliberately adversarial. They’re not designed to promote harmonious relations — they’re designed to get at the truth in an adversarial way.

Increasingly, our pūkenga, our experts, are asked to give evidence to judges who have limited experience of te ao Māori. But in a marae setting, we could have pūkenga providing their kōrero to arbitrators who are already extremely knowledgeable, so their purpose would be to provide nuanced and alternative expert perspectives, rather than more basic explanations of concepts.

Our kaumātua and pūkenga could also provide their kōrero in an entirely Māori way.

Often when we explain a position on a matter, it starts in one place and it jumps to another place and then it goes to another place and it doesn’t look like Pākehā law or even history at all. In proceedings under tikanga on marae, we wouldn’t have to engage in a translation exercise to help a judge understand the logic and consequences of that.

A very important concept in arbitration is the concept of neutrality. It’s critical that the decision makers are independent, whereas a rangatira applying tikanga may not be independent from the parties in the same way.

But the equivalent levers that we have in te ao Māori are whanaungatanga and rangatiratanga, because they come packaged with the obligation to use authority wisely. These tikanga get at the same issue that independence is trying to get at, which is to ensure fairness.

In some disputes this may be enough. In others, appointing a rangatira from a different area could be a positive way to recognise their mana and build relationships across hapū and iwi.

Our people have been debating matters and resolving conflict inside our wharenui for centuries, and I think it’s perfectly possible to imagine the elements of adjudication being built up around this to suit our current circumstances.

There’s always the risk with this sort of thinking that we’re just adapting a European system to make it Māori-friendly. But I think there are enough parallels, and enough ways in which arbitration and tikanga are broadly compatible.

Outcomes in arbitrations tend to be accepted because parties have had so much say in designing the process and have appointed the arbitrators. They’ve chosen the law, they’ve chosen how they want to conduct the proceedings, they’ve had such a strong hand in designing the process that the usual outcome is to accept the decisions.

These are all things that Māori could take advantage of.

Commercial parties have been using that freedom for decades. They’ve taken the flexibility on offer, and they use state law itself to guarantee that freedom.

Our ambition should be to find ways to have our law given and understood in its pure form.

I think it’s possible to find these paths. Arbitration is one potential option. It is already being used in Māori contexts, but more and better use could be made of it.

 

You can read Nin Tomas’s story in the ­E-T archives and there are more insights into her commitment and courage in the reflections of her son, Inia, in this interview.

Amokura Kawharu is president of the Law Commission. She practised commercial law in Auckland and Sydney between 1997 and 2004 and then worked in academia from 2005 to 2020 specialising in commercial and investment arbitration, property law and international economic regulation. Amokura is the co-author of Williams & Kawharu on Arbitration and has published widely in the arbitration law field. She is a barrister of the High Court of New Zealand, and a fellow of the Arbitrators’ and Mediators’ Institute of New Zealand and the Royal Society of New Zealand. Amokura has a BA/LLB(Hons) from Auckland University and an LLM from the University of Cambridge. Her iwi are Ngāti Whātua and Ngāpuhi.

As told to Connie Buchanan, and made possible through the Public Interest Journalism Fund.

© E-Tangata, 2022