The consequences of the repeal of the Labour Party foreshore and seabed legislation and the conferring of quasi property rights on citizens of Maori ethnicity by the present foreshore and seabed legislation enacted by the Maori Party and National have come home to roost in the judgment of Churchman J. in the Re Edwards case. What was thought to be a sincere attempt to ensure that in those rare cases where a Maori person could prove some physical and enduring association with coastal land dating back to before the signing of the Treaty of Waitangi such rights should not be lost by the 1840 tribal agreement to accept British sovereignty.
The judgment is lengthy and given the astonishing reinterpretation of what constitutes the common law of New Zealand will no doubt be the subject of appeal, but some preliminary conclusions can be drawn. At the heart of the judge’s reasoning is the notion that “Tikanga”, a partly spiritual partly cultural concept comprising a number of strands of behaviour by which it is now said that Maori society ordered its affairs in times past (we can’t be sure because it is all word of mouth) can somehow translate to rules of law relevant to the multi-ethnic, sophisticated, and complex society which New Zealand now is. This is akin to asserting that rules of conduct, obligations and property ownership found in feudal England in the twelfth century are some how relevant to the legal ordering of New Zealand society today. That said however the notion of “Tikanga” is enshrined in the legislation and expressed to mean “Maori customary values and practices.” Clearly that is of little help in understanding the reach of the rights conferred by “Tikanga” and on whom, without knowing what those values and practices were pre 1840. In attempting to give some meaning to these words the judge embarks on an extensive but highly selective review of judicial dicta, and academic writings, including those of Williams J. a sitting member of the Supreme Court. Writing extra judicially, that judge drawing on writings of the Waitangi Tribunal and various academic writings has made it his mission to incorporate Tikanga into the common law. Unfortunately, Churchman J’s summary of these opinion leads nowhere because he concludes that it is not possible to give any hard and fast definition of what the words “customary values and practices” mean. Given that the content of the statutory definition is crucial to the outcome of the case this is an astonishing conclusion.
It may be possible that these notions of conduct have some continuing interpersonal Maori relevance, but it is simply not tenable to import spiritual beliefs and ancient codes of conduct into the fabric of the contemporary common law of New Zealand. The reason is obvious beyond debate. The law must be certain, readily available to all and obeyed by all. Ignorance of the law has never been an excuse for failing to comply, but what if in disputes between citizens or between citizens and the state the law cannot be ascertained other than by reference to what some academic thinks it to be or as some “expert” witness defines it to be in any given case. That is not law it is a lottery infinitely more fraught with risk than the existing system of litigation through the courts – and that can be bad enough. If lawyers, judges and litigants cannot know with acceptable certainty in advance of litigation what is the content of this new skein of ancient Maori practice means then in any dispute in which the notion is pleaded the whole system collapses. We are then left with the musings of Humpty Dumpty in Alice and Wonderland “when I use a word it means just what I choose it to mean.”
It doesn’t end there. As is clear from Re Edwards which involves litigation between Maori and non-Maori interests, the notion of “Tikanga” and ability to plead it is presumably available to anybody claiming some Maori antecedence, in any litigation. The implications of this once they sink in are so destabilising that it is difficult to see how the Common Law can survive. What will replace it is anybody’s guess presumable something based on ill- defined ancient spiritual and cultural values as claimed by less than fifteen percent of the population of New Zealand. One can well envisage that future commercial contracts will contain clauses, as is the case of much overseas commercial litigation ensuring that any disputes will be governed by the Common Law of England which remains free of these fanciful notions: this coupled with a dramatic rise in recourse to arbitration. And what of non- commercial matters such as trusts or property relationship agreements. Will it be sufficient for a disaffected beneficiary or a party claiming a smidgen of Maori blood to subvert the clear intention of the parties by pleading that the outcome is not in accord with Maori customary values and practices?
The implications of this judgment are deeply disturbing. It is to be hoped that the appellate courts will restore some sanity and certainty to the common law and at least confine the notion of Tikanga to the historical relationships and understandings of those seeking a right to the foreshore of New Zealand greater than that enjoyed by the public at large.