Te Apo Tahanga*
In 1363 Edward the Third an ancestor of the present King Charles decreed that henceforth all court proceedings must be in English. Prior to that they had been written in Norman French (a change that the French have never really got over.) For the past six hundred and sixty years this has been the norm throughout the common law world and it has been so in New Zealand since 1840 when the tribes accepted British sovereignty and enjoyed all of the benefits of citizenship and the Common Law. But it is no longer so in New Zealand. Increasingly Maori tribes are bringing cases in the courts seeking common law remedies relying on proceedings which are written partly in English and partly in Maori and often using words to express ideas which are not only ambiguous but are used to describe things which did not exist in Maori society pre-1840. A recent example of this trend is a case which came before the High Court on the 18th of November 2021. In it the plaintiff the Ngai Tahu tribe seeks a declaration:
The plaintiffs seek declarations as to their rights in relation to wai maori (freshwater) that are grounded in tikanga – or in the Ngai Tahu dialect tikaka – specifically their rangatiratanga and their entitlement to exercise such rights pursuant to putake-mauka / rangatiratanga entitlements.[1]
Overwhelmingly the people bringing these proceedings have assimilated into our multi-cultural society and are indistinguishable from other New Zealanders either by appearance or the way in which they live. They understand that our country in 2023 is so distant and different from that which existed here in 1840 as to be unrecognisable. We all now live in a democratic prosperous settled society governed by one law for all enjoying the benefits of a thriving market economy which is a far cry from the violent tribal society which existed here when Captain Hobson arrived. True some of those world class privileges have been under serious threat over the past five years but with a change of government, which there surely will be most if not all of the damage can be promptly repaired. One of the existential threats which notwithstanding much back peddling by Ardern’s successor government is a concerted effort on a number of fronts for a small group of persons claiming some Maori blood to secure ownership of our fresh water. Increasingly this spurious claim is based on a fictional reinvention of the terms of the Treaty of Waitangi and after a brief flirtation with the United Nations convention on Human rights those seeking in effect to own our economy now rely on rights, they say were guaranteed to them in 1840. This is patent nonsense, and leaving aside that, any constitutional status the document might have once had has been fully performed. That said it is being increasingly relied on by a small group of greedy tribalists to secure ownership of assets which are crucial to the survival of our democracy, our market economy, and the Rule of Law. One such case is that brought against the Crown by members of the Ngai Tahu tribe seeking ownership of the South Island freshwater resources . This finally wended its way to a hearing on a preliminary point of law before Associate Judge Lester in 2021. The plaintiff relying on “Tikanga” (itself a meaningless term in any legal context) wanted the Court to rule solely on the first of five declarations it seeks. That is
A declaration that Ngai Tahu has putake-mauka / rangatiratanga entitlements to wai maori
According to the Maori dictionary “rangatiratanga” has a number of meanings including sovereignty, chieftainship, right to exercise authority, chiefly autonomy, and ownership. Derived from the concept of “mana” it carries with it implications of authority, control, and regulatory oversight it is said that by the 19th century it evolved to mean the capacity to make law something it is said was guaranteed to signatories of Te Tiriti o Waitangi. “Putaka mauka” is defined as to do with “ancestry.” So presumably the basis of the claim to the crucial declaration is that because of their ancestry the claimants have authority and ownership over all of the fresh water in the South Island. The fact that the plaintiff’s counsel Finlayson KC says that they are not seeking ownership of the water has a hollow ring about it given that ownership is one of the meanings of the relief sought and exclusive right to control amounts to ownership.
The plaintiffs say this means:
- incorporates the right to make, regulate, alter and enforce decisions pertaining to how wai māori is allocated, used, managed and traded, and by whom;
- includes the right to set terms of tikaka and riteka on the use and non-use of wai maori;
- Ngāi Tahu can govern, work and atawhai wai māori in a way that dignifies the tipuna of Ngai Tahu, according to the tikaka and riteka, and for the benefit of present and future generations (ka uri whakatipu i muri nei); and
- Ngai Tahu individuals and whānau have the freedom to live according to their customs and traditions.
The other three declarations sought all relate to what should happen if the plaintiff is successful in the first. They are:
- includes the right to set terms of tikaka and riteka on the use and non-use of wai maori;
- means Ngai Tahu can govern, work and atawhai wai māori in a way that dignifies the tipuna of Ngai Tahu, according to the tikaka and riteka, and for the benefit of present and future generations (ka uri whakatipu i muri nei); and
- means that Ngai Tahu individuals and whanau have the freedom to live according to their customs and traditions.
This then is what passes for civil proceedings in the High Court in 2021. Claims expressed in terms not only very few readers can understand but so flexible as to be meaningless and exactly contrary to what their lawyer says they are seeking. Fortunately, in a robust defence led by experienced counsel who appears to be immune to the current mania for all things Maori the Crown rejects outright the rights claimed. Its position is worth quoting in full as a refreshing rebuttal to this current elevation of claimed Maori rights being superior to all existing relevant laws and practices by pointing out to the Court the relief sought would override:
- Legislation, including the Resource Management Act 1991, the Water and Soil Conservation Act 1967 and Geothermal Energy Act 1953 which has given the Crown the right to control and use freshwater.
- Some or all of the rights asserted by Ngai Tahu, if they exist, have been modified, suspended or extinguished by legislation; the creation of legal rights; land alienation, other contracts or deeds or consequential administrative actions and/or other conduct or events inconsistent with the continued exercise and/or existence of those rights.
- To the extent the claims made in the present proceeding are in substance the same as those claims settled in the Ngai Tahu Deed of Settlement, the Crown is released and discharged from its obligations in respect of those claims.
- There is a further positive defence in estoppel and acquiescence arising from the Ngai Tahu Deed of Settlement.
- The Court should not intervene in or seek to constrain the Crown in relation to the development and introduction of legislation and policy.
Mr. Finlayson KC asking the Court to rule only on the first declaration sought is a clever ploy (unsurprising given he was the Attorney General in the last National government responsible for managing many of the Maori claims for handouts of tax payers’ money) because success in (a) above in effect dumps the claimed rights in the lap of the government of the day in a way that the plaintiffs cannot fail short of Parliament overruling the result of any substantive judgment in the case.
The result to date.
The judge applying well understood law had no hesitation in finding for the Crown and ruling that if the case is to proceed the Court must deal with all of the relief sought and not just the first declaration. To date the case has gone nowhere unsurprisingly given that the three waters (affordable water) legislation has given the plaintiffs all that they are seeking in these proceedings, and if they don’t get it there then the Resource Management replacement Bills will fill the bill.
Cases such as this highlight how the law which since 1840 has been common to all New Zealanders and has been conducted using the English language with the emphasis on precision and clarity is becoming subverted by introducing words which are understood by a vanishingly small proportion of the public and which have no fixed, precise meaning. It is as if Alice in Wonderland has come to town and like the Red Queen Maori litigants feel they are free to contend that words mean what they say they mean on the day but tomorrow they may have a different and more advantageous meaning. We have seen this in the foreshore and sea bed litigation where the meaning of the word “Tikanga” was crucial to the outcome of the case but the judge (encouraged by a Supreme Court Judge, Williams J. in his extra judicial writings) refused to give the word any defined meaning to the word, leaving it open to later litigants to claim some meaning or usage different from that which attracted Churchman J. in the case at hand. In the result the Judge felt able to hold that the word was capable of meaning “shared exclusivity.” Which is an outstanding oxymoron in any language.
It doesn’t stop there. Increasingly statute law is becoming larded with elastic language invented to suit modern circumstances. The three waters legislation is a unique example of what one can only suppose is deliberate obfuscation. Something called “Te Mana O Te Wai statements” confer on all Maori tribes and subtribes the right to dictate how freshwater is allocated and used in New Zealand. My research into what these words mean (one translation is simply “water”) has proved fruitless involving as it does perusal of the Water Services Entities Act and a number of National Policy Statements. Yet these directions are binding on all New Zealanders and must be complied with by all relevant local authorities within two years. It is no wonder that Ngai Tahu are content to let their water grab rest unresolved in the High Court when they have a cast iron legislative right waiting in the wings.
That said Maori is an “official language” and no doubt it will be contended that a Maori litigant, or perhaps any litigant should be free to bring court proceedings using the language. But then sign language is an “official language” and it has not yet been suggested that it be used to bring and conduct court proceedings. The simple answer is that if a litigant does not speak English, then it has long been common practice for them to use the services of an interpreter to render the pleadings into English, in conducting the case in Court then it is routine for the Court to appoint an interpreter to ensure that a litigant or witness is able to convey their case to the judge or jury. It is also commonplace for a court to be called on to decide as a matter of fact, not law what is English language meaning of some claimed custom in a dispute between parties contending for different outcomes. The Judicial Committee of the Privy Council has become expert at it in cases drawn from across the Empire and later Commonwealth. But at the end of the day these customs do not become part of the law they remain solely questions of fact.
And the lesson to be drawn from these mendacious attempts to subvert the judicial and legislative process and ensure that the law is no longer common to all is simple; bring back Edward the Third’s edict (shared as it is by Winston), and for the Court Rules of procedure and Parliament to require that all court proceedings shall be solely in English while preserving the right to the use of interpreters and translators for those who speak only 1840s Maori.
*Oh, all right for those of you who have been neglecting your Maori language studies the English Maori dictionary defines “te apo Tahunga” as “naked greed”.
[1] In a glossary annexed to the amended statement of claim putake-mauka is defined as: “a unique Ngai Tahu term used to refer to the ancestral source of one’s rights upon the landscape whether it be the land, waterways or other taonga.”