Māmari Stephens on the growing role and status of tikanga Māori in our legal landscape — and how it may guide the Supreme Court’s decision on the Peter Ellis case.
It’s a quiet spot, this entrance to the Herekino forest.
On this January morning, the air was cool, and I wanted to get moving, to feel my body working by walking the track. But there was that red-lettered sign in front of me at the track entrance: RAHUI I ROTO TE NGAHERE.
The instruction was clear. The track was prohibited to us.
I thought about ignoring it. I could pretend that the sign was old; that it wasn’t really meant for me. Who would know, right? We’d be done in an hour — me, my cousin, and our Aussie uncle and nephew. It was only a quick walk. The ngāhere would barely even know we were there.
Well, that little bit of self-talk was never going to work. A rāhui had been placed over the area to protect it from the spread of kauri dieback and it was not our place to challenge that law, or to argue about what the law was.
The fierce and bloody lettering told us all we needed to know. The sign functioned just as a pou rāhui should: as a marker to tell us that the area was set aside, and prohibited to all to enter. Anyhow, there was a bunch of our whanaunga who would give us heck on our Ahipara Takiwā Facebook page if we got caught. We knew we were bound by this law, so we obeyed it. Easy.
It turns out there’s not just one type of law in Aotearoa New Zealand.
At one level, this makes clear sense. There are lots of different rules to live by. Playing league on Saturday is governed by one set of rules, a tangi at the local marae is governed by another. My kids are pretty good at disobeying mine, but there are rules in our own homes, our own churches, our own spaces and places.
It feels a little bit different, though, when we refer to “the law”. As in: “Don’t break the law or you’ll go to jail.”
Simply put, this is the notion that there’s a nationally recognisable set of laws that we’re bound by, we can be punished by, and that we’re supposed to be protected by. To the extent that we ever think about it, we might know that parliament and the courts set out and enforce these nationally recognisable (and applicable) laws.
But what if there are nationally recognised laws that don’t originate from parliament or the courts? What if any or some law are derived from tikanga Māori?
Pfft, you might say. Tikanga Māori is already the law of the land. It differs from place to place, it depends on different hapū and iwi, but it exists, regardless of Pākehā laws — and no bunch of parliamentarians or judges makes any difference to what really goes on in Māori communities.
And, of course, that’s true. Nothing changes that. But, in the main (usually), only Māori people and collectives might feel bound by tikanga, and bound to uphold it.
You might have a very different mindset. Pfft, you might say. Tikanga Māori isn’t law, it’s not enforceable by the police or any institution, and has nothing to do with anyone outside the relevant Māori collective. They’re not written down or confirmed by any recognisable institution, so how can they be nationally recognisable, let alone applicable? Fine if some people want to be ruled by tikanga Māori. But the law is the law, and tikanga Māori is not my law.
This is where rāhui are interesting. It’s because of what they reveal about how we understand law in Aotearoa New Zealand. Rāhui are tikanga — legal practices that have very specific functions for specific purposes. They are birthed of te Ao Māori, although the word itself is understood similarly throughout eastern Polynesia. (Check out Te Mātāpunenga’s entry about this term).
A rāhui can be placed where death has occurred in a specific area, to make the surrounding area tapu. Or to preserve and protect a natural resource, and to allow it to regenerate.
Hirini Moko Mead even suggested, back in 1979, that a kind of “political” rāhui could be placed on Māori rugby players who had been chosen to play in apartheid-era South Africa, to prohibit them from playing there. It wasn’t followed through, but the debate fostered the idea that rāhui could be used beyond its traditional sphere.
We’ve recently seen two very different and highly publicised accounts of rāhui.
When the volcanic eruption happened on Whakaari in December last year, killing 18 people, an enormous rāhui was imposed over Ngāti Awa coastal territory. Te Whakatōhea and Te Whānau a Apanui, also placed rāhui over their coastal areas.
People were prohibited from accessing, or taking food from, the rāhui areas, except for those involved in rescue and recovery. While some fishing and tourism operators ignored the rāhui, most did not. Government compensation was available to assist those who lost money as a result of not being able to operate.
We also saw the Covid-19 legally enforceable lockdown often referred to as a national rāhui. The chief executive of Te Taura Whiri i te Reo Māori, Ngāhiwi Apanui, even suggested that Jacinda Ardern probably has the standing with Māori communities to declare a rāhui over the whole of Aotearoa. On the other hand, he remained unconvinced that the Level 4 lockdown could really be called a rāhui at all, preferring the term noho taratahi, or quarantine.
What interests me about the place of actual rāhui in our complex society is that many people, Māori or not, will obey a rāhui if they know it exists. Of course, a significant number of people will be entirely content to trample on tikanga Māori. Nevertheless, experience seems to suggest that many, perhaps a majority, grasp the significance of rāhui, and will comply, as happened at Whakaari, and also in smaller local examples where deaths have occurred by drowning.
If ordinary people can often get it, what about the institutions that uphold and enforce legislation and regulation, such as local councils, central government and the New Zealand police?
On occasion, police have been involved in monitoring rāhui, local councils and conservation authorities have also promoted awareness of rāhui, and track closures in the Waitākere ranges, for example, coincide (although only partially) with the rāhui placed in 2018 over forests by Te Kawerau ā Maki.
On the other hand the authorities also fail to support rāhui, creating tensions, and the enforcement of rāhui has usually been left up to Māori communities.
There’s some limited legislative support for the imposition of rāhui, for example under some Treaty of Waitangi settlement legislation and fisheries legislation (for example sections 186A and 186B of the Fisheries Act 1996).
Rāhui show Māori law intersecting with general law in surprising ways. This has been the case for a while, and now the institutions of New Zealand’s general legal system are (slowly) catching on and catching up.
There’ve been some interesting conversations happening in New Zealand courts over the last few years, about the role and status of tikanga Māori in the laws of Aotearoa New Zealand.
One of the more important judicial statements was uttered in 2012 by our top judge at the time, Chief Justice Sian Elias, in Takamore v Clarke. This case, at its most basic, was about who had the right to determine where James Takamore could be buried — his wife as the executor of the estate, or his whānau who had buried him according to their own tikanga. In her minority judgment in the Supreme Court, Justice Elias said that:
“Māori custom according to tikanga is therefore part of the values of the New Zealand common law”. (Emphasis added.)
This position was also echoed by the majority (at paragraph 164). Why was this seemingly simple position such a big deal?
It helps to think of how tikanga Māori has been viewed and understood within the New Zealand legal system, and more specifically in connection with what’s known as the “common law”, the law made by judges in New Zealand courts, as well as judicial decisions that have developed over centuries in England and other Commonwealth countries.
There seem to be three main views of how to understand tikanga Māori in our legal landscape.
View one: Tikanga Māori is a distinct set of laws, obligations and practices. It doesn’t matter whether courts and parliaments recognise tikanga Māori. Whānau, hapū and iwi exercise tikanga Māori anyway. Tikanga Māori is an independent source of laws in its own right. In fact, contact with, and recognition by, the general legal system can distort and damage tikanga Māori, and courts and parliaments must not create or determine it.
View Two: Tikanga Māori is a distinct set of laws, obligations and practices. It may be protected by the common law made by judges, but it’s not part of the common law. On this view, tikanga Māori can only be recognised and protected by the common law if there is enough evidence that it exists, and has survived into modern times.
If there is, the courts can affirm it, and take note of it in making their judgments, as long as parliament hasn’t passed a law that extinguished that tikanga (which at least means it survives in Māori communities but the courts and parliament need not take it into account). Tikanga Māori, on this view, requires Crown acknowledgment and engagement to have validity in the legal system.
A third view builds on Supreme Court Justice Joseph Williams’ important 2013 speech Lex Aotearoa, and opens up further possibilities. It’s possible to identify a set of principles derived from tikanga Māori that can both form part of the common law in New Zealand and influence its development.
Such principles inevitably reflect tikanga Māori and its on-the-ground laws and practices, which will vary from community to community but are understood at a more elevated level, and are therefore more broadly applicable, potentially to all New Zealanders.
These tikanga-based principles can sit alongside common-law principles such as “natural justice”, “fairness”, and “equality”, which are themselves based on centuries of customary law and practice and developed by the Common Law. Principles such as “mana” and “whanaungatanga” and “manaakitanga” can serve to guide judicial decision-making.
When Justice Sian Elias made her statement in the Takamore v Clark case, hers appears to have been more of a “View Three” statement.
This brings us to Peter Ellis. We’re currently awaiting a decision by the Supreme Court that will send a very clear signal as to the fate of View Three.
You may recall Peter Ellis as the man at the centre of the Christchurch Civic Creche case in the early 1990s. He was convicted of sexually abusing children in his care as part of a team of early childhood workers at the Christchurch Civic Creche, established in what used to be the gym of my old school, Christchurch Girls’ High before it became a part of the Christchurch Arts Centre.
He received a sentence of 10 years’ imprisonment, and appealed his conviction before the Court of Appeal in 1994 and 1999. He sought pardons and was turned down. Shortly before his death in 2019, he filed an appeal against his convictions in the Supreme Court. He passed away before the appeal could be heard.
It was at this point that the case took an unexpected turn. A case brought by a living Pākehā man to appeal his convictions became, after his death, a case about the place of tikanga Māori in our law and legal system.
Usually when an individual dies, with an active appeal case in the pipeline, their case dies with them. In common-law legal thought and tradition, when a person dies, he or she loses all will — all ability to make decisions and carry out obligations. They no longer have legal capacity. On such thinking, the dead can’t speak for themselves, so they lose the ability to take part in a criminal proceeding. Death is both biological and legal.
Peter Ellis’s lawyers tried anyway to get an appeal heard. On November 19, 2019, the Supreme Court — Justice Glazebrook and Justice Williams — asked the lawyers for the Crown and for Peter Ellis a question that few had really been expecting: Could New Zealand establish an entirely new rule about the effect of death on such proceedings based on, or influenced by, tikanga Māori?
Tikanga Māori, after all, has very different things to say (compared to the existing common law) about rights and obligations after a person’s death. Was it time to turn to Māori law for the answer to a legal issue that would affect all New Zealanders?
The Supreme Court gave both sides five weeks to answer that question. In that five weeks, a panel of tikanga experts was convened, including Te Ripowai Higgins, Pou Temara, and Hirini Moko-Mead.
In June 2020, the court reconvened and heard the arguments. Remarkably, all parties took a shared position that the evidence of the tohunga was uncontested: Tikanga Māori represents common values, processes and principles that are of relevance to all Aotearoa New Zealand.
All parties accepted, too, that a potentially applicable value based on tikanga was that of mana, as the mana of every person and of the collective to which they belonged, matters, and survives death. If injury or hara (such as an unjust conviction) has been done, that can affect the mana of a person even after death.
Arguments on the day were quite brief, and simply turned on whether the tikanga-based value of mana required that the appeal be stopped in its tracks (the Crown’s position), or allowed to continue (the position of counsel for Peter Ellis). The court reserved its decision.
If the Supreme Court does find that mana is a tikanga-based value that is part of the common law and can determine if the appeal goes ahead or not, as has been said elsewhere, it will mark the first significant time in our legal landscape that tikanga Māori will have been applied to an essentially Pākehā common law dispute.
And so we wait for the court’s decision. I wonder if I have time for a quick non-rāhui bushwalk.
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