In its decision on the Peter Ellis appeal, delivered a week ago, the Supreme Court has once again emphatically recognised the societal relevance and legal force of tikanga. Kennedy Warne explores the court’s decision.

Thirty-two years ago, when I edited a special issue of New Zealand Geographic to mark the 150th anniversary of the signing of the Treaty of Waitangi, the word tikanga did not appear in any of the stories. Mana, tapu, turangawaewae, te reo — these and other subjects were explored in an issue devoted to understanding Māoridom.

But tikanga, the set of undergirding principles, values, standards and norms that frames Māori thinking and living and determines what is appropriate and just conduct in any circumstance, was absent. I doubt if I knew the word’s existence. Yet today tikanga has become part of the national vocabulary, as mainstream as kaitiakitanga and kōhanga reo.

A week ago, tikanga’s visibility as a concept was given additional boost with the publication of two Supreme Court decisions connected to the long-running and controversial case of Peter Ellis, who was convicted in 1993 of sexual offending against children at the Christchurch childcare centre where he was employed as a teacher.

The court published the decisions concurrently. One quashed the convictions against Ellis which had stood for almost 30 years and for which he served seven years in prison. The other explained the reasons why the court had allowed the appeal to be heard after Ellis’s death. It is the second of these decisions that focuses on the growing importance of tikanga to the legal system, and which I want to delve into here.

This is not the first time the courts have recognised and invoked tikanga. In 2021, the Supreme Court explored the relevance of tikanga in its decision concerning seabed mining off the coast of Taranaki — a decision I discussed in E-Tangata here. In the same year, the High Court recognised the legal force of tikanga in its decision to grant customary marine rights to Whakatōhea, as I described here. But the latest Supreme Court decision goes even deeper into the meaning and relevance of tikanga.

There are two aspects of the case that are unusual. First, it is rare for the Supreme Court to allow an appeal so long after a conviction — in Ellis’s case, more than 25 years. During those years, the Court of Appeal had twice upheld the convictions against Ellis, as had a ministerial inquiry.

When Ellis’s lawyers approached the Supreme Court in 2019, seeking leave to appeal to the highest court in the land, it was on the basis that a new professional consensus on how the evidence of children is gathered, interpreted and presented in legal proceedings had emerged which called into question the accuracy and reliability of testimony presented to the jury in the original trial. In light of this new information, Ellis’s lawyers argued, aspects of the trial were undeniably flawed, and a miscarriage of justice had occurred.

In view of the seriousness of the issues placed before it, and conscious of continuing high public interest in the case, the court agreed in a split decision — three judges in favour, two opposed — to allow the appeal to be heard. But two months before the hearing was due to begin, Peter Ellis died from cancer.

Ordinarily, an appeal would lapse upon the death of the person bringing it. But in a second unusual move, the court decided to make an exception and allow the appeal to proceed. It is the court’s reasoning in making this exception that forms the substance of its 126-page published decision. And at the centre of the decision is tikanga.

Why would tikanga play such an important role in this decision? Peter Ellis wasn’t Māori, and nor, apparently, were any of the children involved in the case. Why would a concept that developed within the Māori world and which shapes and regulates the lives of Māori apply in wider New Zealand society?

Because, says the court, tikanga Māori is the first law of Aotearoa and its principles rightly inform the interpretation and development of the common law of Aotearoa.

“It is the function of this Court to declare the law of Aotearoa/New Zealand,” wrote Justice Susan Glazebrook, one of four judges who contributed to the published decision, “and we must do so mindful of the values that in combination give us our own sense of community and common identity. . . . [Tikanga] is part of the values of the New Zealand variety of the common law.”

Tikanga principles are already incorporated into public policy and statutes, including the Resource Management Act, the Property (Relationship) Act, the Oranga Tamariki Act, the Marine and Coastal Area (Takutai Moana) Act, and others.

These statutory frameworks have required courts to apply tikanga concepts and values.

“We are now at a point,” Justice Glazebrook noted, “where tikanga and/or tikanga-derived principles are part of the fabric of Aotearoa/New Zealand’s law and public institutions through legislation, the common law and policy.”

To help the court identify what aspects of tikanga might be relevant to the Ellis appeal, it convened a wānanga of tikanga experts led by Hirini Moko Mead and Pou Temara. The wānanga focused especially on the concepts of hara and ea. Hara, the wānanga explained, means the transgression of tapu, the commission of a wrong and the violation of tikanga, resulting in an imbalance. This requires a restoration of balance — a state of ea.

Justice Joe Williams elaborated on these concepts in his contribution to the decision. Hara, he noted, results in harm to the affected party, “including harm to their mana, and thus an imbalance is created between those involved. The restoration of balance becomes a matter of mana for both sides. In the present case . . . the hara may be Mr Ellis’ offending against the victims or it may be the conviction of an innocent man. The important point, according to the mātanga [the tikanga experts who took part in the wānanga] was that by granting Mr Ellis leave to appeal, this Court signalled that in its view, all prior proceedings had not finally resolved that imbalance — that is, had not yet reached a state of ea — and that the matter deserved further inquiry.”

The mātanga stressed that ea needs to be achieved both for Ellis and for the complainants. Otherwise, the hara carries on. The death of one or more of that parties doesn’t change that reality. “Under tikanga, disputes or the requirement for resolution are not impacted by the death of an individual (either an offender or a victim),” wrote the mātanga. “Rather, the hara remains and is carried onto the next generation. In this case, even though Mr Ellis has died, any hara that exists does not die with him.”

This sense of continuity through time is something the wānanga dwelt on not just with respect to hara but also with mana, a person’s standing, dignity and authority. Ellis as an individual has mana, noted the mātanga. The victims and the whānau also have mana. “Death does not extinguish that mana,” wrote Justice Williams, “because mana is not an individualistic phenomenon. It exists because of relationships with others in accordance with the principles of whanaungatanga and whakapapa. Such mana-sustaining relationships do not end at death, even if they are changed by it.”

Although mana approximates to the common law principles of individual dignity and integrity, “it is a more woven, less individualistic concept,” added Williams, “and, because of this, its posthumous influence is stronger than that of the common law conception of individual reputation.”

Another “tikanga lens” through which the court considered the prospect of a further inquiry into the Ellis case, wrote Justice Williams, was whanaungatanga, loosely defined as kinship.

“Whanaungatanga means that, when hara is committed, it not only impacts the individuals involved (offenders and victims), but also the broader collectives of these individuals including whānau, hapū and iwi, that is, their communities,” he wrote. “A community is always responsible to some degree for the wrongdoing of its members because they, too, are part of the community. It also means that a community must share the burden borne by any of its members who are victims of offending.”

Whanaungatanga places great value on maintaining community cohesion, Williams added. “Sometimes the judgement of whanaungatanga will be to put a problem behind us and sometimes it will be that the problem cannot be ignored. As with the common law, context is important. Ea is both the objective and the key. It asks whether balance has already been achieved between the mana of those affected and the needs of community, or whether more must be done to restore balance.”

The majority of the five judges involved in the decision concluded that restoration of balance had not been achieved, and that “further probing of the hara” with a view to achieving a state of ea was warranted. It was not an easy decision to come to. As all the judges explained, they wrestled with the competing demands of finality — bringing closure for all the parties, but especially for the victims — and concern for possible injustice.

But as Chief Justice Helen Winkelmann noted: “A refusal to allow the appeal to continue was unlikely to achieve finality because public debate about whether there had been a miscarriage of justice would very likely continue. This is because the assessment that these were serious issues to be addressed unsettled the balance (the state of ea) that had previously applied. It meant that it was no longer clear where the mamae [harm] lay — was it exclusively with the complainants, or did it also lie with the appellant?”

Justice Williams drew attention to the wider issue of public faith in the integrity of the justice system. “Our system of justice relies on community confidence that, although it is a human system and therefore fallible, it is also principled and ethical,” he wrote. “It is willing to accept the possibility that mistakes leading to injustice may be made, and if they are detected, then it is committed to correcting them. Mr Ellis’ case is potentially such a case. Despite two appeals and two independent inquiries (none of which found for Mr Ellis), there remains genuine concern that justice may have miscarried.”

That concern proved to be justified, and the court quashed Peter Ellis’s convictions.

In reading the Supreme Court’s decision, I was struck by the deep feelings of concern expressed by the judges for the distress that the respective whānau of Peter Ellis and, even more so, the children involved in the case have experienced.

Justice Williams expressed his regret in these words: “The victims in this case (and they will remain victims whatever the result in the appeal) will once again have what they said 30 years ago as very young children, placed under a forensic microscope. I am alive to the ongoing disruption of this proceeding for them. More significantly, I am alive also to the retraumatising effects of it on the victims, on their parents if they are still alive, and on the victims’ own families if they now have them.

“After so long, and after Mr Ellis’ passing, it would have been better to treat the appeal as abated if at all possible. But it is not possible. Its unique factual context has caused this case to live on in controversy for decades. Successive appeals and inquiries have failed to quiet concerns. The grounds of appeal to this Court reflect those concerns substantively. This is so clearly a case in which the integrity of the justice system is in question that ea or the ends of justice can only now be achieved by continuing. As I have said, I come to this view with great regret.”

It is hard not to feel that law in this country is in good hands with judges who display both great erudition and great heart.

Yet, not surprisingly, the Supreme Court’s recognition of tikanga in this case has drawn criticism. A columnist for the New Zealand Herald called the court’s decision to invoke tikanga “audacious” and “judicial activism with a capital A”.

I wonder who is being audacious. Perhaps the audacity lies in the assumption that an entire system of values, principles and laws that grew up uniquely in these islands should remain on the margins of the country’s legal system, just as Māori themselves should remain politically marginalised.

Such views are a throwback to colonial times, when the customary law of Indigenous people was regarded as inferior to the imported law of the settlers, a time when “notions of (British) racial superiority were orthodox and ‘native’ customs were treated with suspicion,” as Justice Williams put it in the Supreme Court decision. “Such notions were wrong then, just as they are now.”

I don’t find the court’s tikanga decision audacious — rather courageous, revelatory and profound. It is no more audacious than the sun rising after a long night. Darkness giving way to light.

Kennedy Warne is the co-founder and former editor of New Zealand Geographic magazine and the author of Tūhoe: Portrait of a Nation, published in 2013. Kennedy has written extensively about the connections between people and place, past and present, both in Aotearoa, the Pacific and elsewhere.

© E-Tangata, 2022