In a previous article concerning the Chief Justices views on “climate justice” I wrote about the risks of damaging public respect for the law and the judiciary when judges step off the bench and descend into the marketplace of contentious ideas and government policy. Sad to say the Chief Justice is not alone in these forays. Earlier this year Supreme Court Justice Sir Joe Williams gave the Frank Guest memorial lecture to the Otago University law students. Nothing unusual about that. It is quite common for legal eagles including judges to deliver what has become a signature lecture intended to assist the students in better understanding some topic of relevance to the common law. What occurred in this instance in a speech entitled ‘Decolonizing the law in Aotearoa, was a presentation (bordering on vaudeville at times) which amounts to a demolition of what has hitherto been accepted and understood by the word “common” in the context of the common law. Justice Williams theme is that tikanga Maori should become a part of the common law ranking in all respects equal with the existing components. This is of course part and parcel of the so called Maori renaissance which occupies so much of the time of the commentariat. The contention being that when Captain Hobson arrived in New Zealand in 1840 Maori people enjoyed a well-developed set of “legal” principles (often referred to as Maori lore) which governed their everyday lives. It goes without saying that every society no matter how cut off from the rest of the world has social and religious beliefs necessary to impose some order and explain the natural phenomena with which they are confronted. The question is whether those practices have the ingredients of “law” as the concept was understood in the common law world in 1840 and for the past one hundred and sixty years in New Zealand?
When a seriously ill Captain Hobson sailed back to Sidney, he left behind more than a piece of paper. His legacy included; The conferring of sovereignty over these isles on the Queen in Parliament, citizenship for all Maori inhabitants of the most extensive empire the world had ever known, a common language of commerce and literature spoken more widely than any other around the world and far and away the most common second language for many, a form of democratic government which over time developed into one person one vote, and the common law. In addition, and crucial to the benefits conferred on the occupants was that sovereignty brought with it Christianity in a form beyond the good works of the early missionaries. The influence of Judaeo Christianity on the development of the common law was and is profound. It forms the basis of much of our historical and present criminal and civil law including the law of trusts and the protection of minors. Thus, the prescriptions contained in Ten Commandments. Thou shalt not; murder, steal, bear false witness, covet they neighbours wife, commit adultery and Paul’s epistle to the Romans 12.18 “live peaceably with all men” avenge not yourself … vengeance is mine saith the lord. Such beliefs which amount to the protection of the weak from the strong form the basis of the modern criminal law and much else but there is no evidence that they had any relevance to Maori society in 1840 decimated as it was by the musket wars, endless slaughter, cannibalism, and slavery. To a society cut off from the rest of the world for hundreds of years with no written language or technology these gifts and the prospect of a more prosperous and orderly society were immediately embraced by many Maori. As more and more immigrants have washed up on these shores from numerous countries so developed a truly multi -cultural society watched over by the colour-blind protection of the common law and its hand maiden an impartial judiciary learned in the law. As society became more complex lawyers and judges continued to look to Christian precepts in fashioning new remedies and causes of action is the recognition of a need for some principle of law capable of regulating negligent behaviour in the increasingly complex interactions between citizens arising from technological advances. For example, death and injury caused by the increasing use of motor vehicles and in workplaces. In grappling with this urgent need Lord Justice Aitkin hearing a case in 1932 about personal harm said to be caused by the presence of a snail in a bottle of ginger beer and sitting in a tea shop in Brighton asked himself how the law should respond to unintentional injuries caused by one person to another. He concluded that in doing anything which might cause harm we must all be aware of the effect it might have on our “neighbour.” He thus resorted to the Christian concept of “love they neighbour as yourself.” From this developed the law of Torts or civil wrongs, which now occupies much of the time of the Courts and lawyers in the common law world. It has entitled untold numbers of injured people to seek redress for harm caused by the negligence of others the sole exception being New Zealand which enjoys its socialist inspired Accident Compensation Act. In all this there is one crucial ingredient which the academics and reforming judges appear not to understand; it is that the law inherited in 1840 is” common” to all, hence its name. Every citizen is equal before the law and will be judged by the same rules and standards of behaviour.
Against that background enter Justice Williams and his message to the Otago Law students that throughout the history of European, Polynesian, and Asian settlement of New Zealand there has existed, but not since applied, a rival system of law which is currently known as “tikanga.” Before embarking on an analysis of the Justices speech to the Otago students it is helpful to attempt the difficult task of understanding what the word Tikanga means. Difficult because those who advocate for it to rival the Common law refuse to attempt any definition of the term apparently content to rest on the premise that it will become clear in any case where it is relevant, and that clarity will be provided to the litigants by a suitably chosen Maori elder. Thankfully, Wikipedia is a little more helpful it describes tikanga as: culture, custom, ethic, etiquette, fashion, formality, lore, manner, meaning, mechanism, method, protocol, style, customary law. Quite a formidable list of social mores and historical practices facing any litigant seeking to apply or oppose reliance on tikanga.
Justice Williams was introduced to the students in this way*:
Many an introduction of the speaker begins “X needs no introduction” and then follows a long and detailed introduction, I simply say this: the Honourable Justice Joe Williams, judge of the New Zealand Supreme Court, is one of New Zealand’s leading jurists and leading jurisprudential thinkers. He will, I think, dare us to be wise, he will, I expect, dare us to imagine law and legal education in 21st century Aotearoa New Zealand and to explore what partnership truly means. Tena koutou, tena koutou, tena koutou katoa. My emphasis.
There then followed a haka and some singing.
The learned Judge introduces his lecture in this way:
So I’m really so pleased to be here and so pleased to be given an opportunity to talk about the subject that is certainly important to me and I think important to the way both the law and the country is going to develop over the next decade or more. So, the name of this lecture is you’ve probably seen is ‘Decolonizing the law in Aotearoa, can we start with the law schools.’ I chose a decolonizing theme for this lecture and I know that decolonization was coined in the great reckoning that followed the post-war collapse of the old western European empires and their replacement with the bipolar world the mid 20th century and that it was embraced with enthusiasm by the new and then optimistic united nations.
His theme is:
I see decolonizing the law as a necessary step for all of us… So, decolonizing the law in Aotearoa is just a part of our deeper search for reconciliation and balance as a community, that is, it’s part of the larger project of decolonizing ourselves.
He adopts the language of some Canadian academics:
tweaking the existing colonial system to make it more indigenous friendly, or a little less oppressive. The existing system is fundamentally they say irreparably flawed.
So, the Justices theme is to decolonise New Zealand law.
The Justice views our flawed society in this way:
The system that operates in this country, as you all know we’re all fish swimming in the same bowl, is market-based. Value is measured in property, labour, and skill. Capital is the most powerful economic force or factor in this economy. These are all basic ideas that were imported into New Zealand circa 1840, they’re still here and there doesn’t appear to be any mood at least not in mainstream discourse to dislodge them. That makes Wilson and Yellow Birds comments a little difficult to deliver on. The role of the state is to protect property, to regulate the transactions in capital, labour and skill that make the market system, will allow the market system to work. To help prepare its citizens for a productive role within the market-based economy and to ameliorate the effects of inequality that is an inevitable result of market-based value transaction. Or if they can’t be ameliorated, to suppress them.
In other words, a market economy operating in a democracy. The judge then expatiates at some length on the various political initiatives which have advanced the cause of Maori people over the past few years and turns to the law itself:
Now if you were around in the early days of the treaty settlement period in the 80s and 90s this would have been unthinkable. Yet actually within a generation we’ve moved quite significantly in important areas. In the judicial sphere, of course, there was the Takamuri case in 2013, the Ngati Whatua case in 2018, cases which ditch, if you don’t mind me using that technical term, ditch three hundred years of custom-based colonial jurisprudence about the incorporation of custom into the common law. Case of Tanistry 1608, Campbell and Hall 1774, and the Supreme Court in Takamuri simply says without applying any of the tests in those long applied cases that tikanga is part of the values of the common law.
In the tariff decision in Zhang, cultural background history of deprivation, loss of mana in rangatiratanga walks into the sentencing process for the first time ever. It’s hard to imagine that an appellate court of a decade or two decades ago would have been willing to even think about that idea, let alone enact it judicially in a guideline sentencing decision, and now the Chief District Court Judge, who’s a Maori, is seeding this idea of Te Ao Marama, mainstreaming the experience of the rangatahi Court and the matariki Courts, the therapeutic approach to dealing with offenders for everybody, everybody. Of course, there is a significant asymmetry on the Maori side in terms of engagement with the criminal justice system, but it is for everybody. All you Polynesians.
So, with all that in mind, with those signs with bearing those signs in mind, I think we can see both the direction of travel of the country and the direction of travel of the law. We might want to debate about pace, we might want to debate about whether it’s going to divert 10 degrees that way or 10 degrees that way. But we are not debating direction either in the law or in the way we see ourselves here in Aotearoa anymore.
The judge then expatiates on his familiarity with “colonial law”:
So, I’ve come to the view that decolonizing the law will always be a joint venture. This time it’ll be a common enterprise between the Legislature, the Executive, the Judiciary, and the law schools. Now it may not surprise you to know that I’m not particularly learned in the detail of the law. If I’m presented with a legal problem, the first thing I have to do is work out what category of problem this is. The Chief Justice talks about the house of the law, te whare o te ture, which is in need of constant renovation she says, so if we if you allow me to pick up that metaphor then the first thing I have to do is work out what room this problem belongs to, and then once I’ve figured that out I ask myself what area within the room is the area I need to search. I keep having this image and my head is digging under the laundry and ferreting through my drawers that sort of thing, and then sometimes the sub area within that area. It’s only then that I can begin my search for the detailed reasoning path to the answer that I think I might need, but the point is as long as I’m in the right room and the right area of the room the skills I learnt at law school will find me the answer even if I don’t know anything about that area of law. [My emphasis]
These are astonishing revelations coming from a Supreme Court Justice. Before “decolonisation” became the flavour of the month it was generally assumed that only the most learned Judges found a place on the Supreme Court bench after all they would be considering the rectitude of decisions of learned judges in the High Court and Court of Appeal, approving or overruling those decisions. With that aside the Judge comes to the point of what is tikanga and gives examples relating to: the gathering of food, military histories, connection between kin groups, who won when they quarrelled and how the quarrel affected the victors and the vanquished and concludes:
The underlying philosophies and principles of tikanga have to be extracted from what is said, they are not delivered up in a clean way.
The Judge then gives an interesting insight into how tikanga is to be unearthed after its long colonial night:
Tikanga is not some immutable thing – sacred, set-in stone, too tapu. Don’t doubt it, it’s not like that, it never was. If you read the Maori Land Court minutes, the native language minutes, you’ll see our old people loved to debate about tikanga and how it applied, that’s why they raced to court, I think they just loved the forum. [A forum be it noted that was part of the legislative framework of New Zealand designed to protect Maori land from alienation and over which Judge Joe Williams, as he then was presided.]
The address was greeted by the singing of a waiata, dancing and a promise by a senior member of the faculty immediately to begin work on incorporating tikanga into the law syllabus. No doubt this was all very entertaining for the students who like nothing better than an anti-establishment cause to get their teeth into but stripped of the rhetoric it is difficult to come to grips with any substance it may contain indeed what it is that the Judge is suggesting would become the “new common law” “within the next ten years.” Here are some of the problems
I can find nothing in the Judge’s lecture which defines what tikanga is or that it has anything to do with the law indeed he says it is impossible to do so. At rock bottom the law is all about the resolution of disputes between citizens and between citizen and the state. There is much talk in the Judges address of community practices by which the tribes historically regulated their dealings but when it is all boiled down seems to amount to no more than some tribal elder remembering back 160 years in the oral tradition, and what he now thinks were the solutions adopted by the tribes in 1840 to the problems of that time. Apart from the insurmountable evidential difficulties inherent in this approach it fails to recognise that the problems of the tribes in New Zealand in 1840 are not those confronting them today and whatever the practices were then they cannot provide an answer to the complex forces at work today. That said the insuperable problem which the Judge does not confront is that the law must be certain, impartial, and knowable in advance by all citizens. Ignorance of the law be it civil or criminal is no excuse but, if a citizen cannot know when, or if a strain of tikanga will be relevant to some proposed conduct until some tribal elder in litigation says it is or is not then there is no certainty and no impartial rule of law and the law collapses.
To whom does tikanga apply and in what circumstances.
To whom does tikanga apply? Is it some wisdom – the preserve of those who claim a tincture of Maori antecedence – and does it only apply in disputes between those with Maori blood lines? If it is assumed that being the fruits of a particular culture which no longer exists in New Zealand as a separate entity it can only apply to Maori persons, then it raises the awkward question often asked but never answered; what is a Maori? Is it somebody with a few percent Maori bloodline among an overwhelming make up of “colonial” genes? Clearly tikanga cannot be reserved for disputes between full blooded Maori because there are so few of them. As Dame Whina Cooper so wisely observed race relations in New Zealand would (and have been) resolved in the bedroom. That leaves only settlement of disputes between those disputants with some Maori blood, and what if one of them would rather take a chance on the “colonial law”? Is that person deprived of the right and required to have the dispute decided by the unwritten practices of 160 years as filtered through the memory of a tribal elder? This conundrum is particularly acute in the “house” (as the Judge would have it) of the criminal law. Pre 1840 tribal practices for dealing with rape and murder theft, wrongful land occupation were, as Hobbes the seventeenth century philosopher would describe, “nasty, brutish, and short” governed as they were by utu (revenge) involving warfare, slave taking, cannibalism, and trade in tattooed heads. None of which the Judge confronts in his lecture, but presumably none of which he contends for in twenty first century “colonial” New Zealand. But then the question arises: Is the pre 1840 response to prevail if the Judge’s prayer is answered and a separate Maori courts established, and if not why not? A useful example from real life dealing with rape illustrates the problem. The late Mr. Justice Williamson a kindly and highly experienced criminal lawyer when sitting in Dunedin in the early 1990s was presented with a difficult sentencing of a young Maori with no previous relevant criminal record who had been found guilty of a particularly nasty rape. At a loss, his Honour decided to seek guidance from two local and widely respected Kuia as to what sort of punishment the defendant’s tribe would impose. Having listened to His Honour’s dilemma the Kuia were at a loss to understand the problem. The Kuia explained that he would be beaten, castrated, and driven out of the tribe. Much to the defendant’s relief Justice Williamson settled for a “colonial law” response of a prison sentence and a telling off. One could multiply examples of the law subjects in which the Judge’s audience of Otago law students are required to become proficient before graduating to become lawyers fit to serve the public; crime, fraud, trusts and wills, company law and the law of partnership (something which the judge enthusiastically embraces), contracts, family law custody and access disputes, land law, torts, evidence, court procedure, arbitration, admiralty law, jurisprudence, conflict of laws, international law etc. These “colonial relics” all exist to serve the interests of Maori and non Maori alike and over the years have been routinely accessed by Maori claimants and defendants but as somebody who is self professed “not learned in the law” many of these subjects are apparently of little interest to the Judge. Perhaps he hasn’t yet had occasion to visit some of these “houses.”
Is it necessary to attempt to incorporate tikanga into the common law?
One of the interesting by products of the spread of the British Empire around the world is that it confronted many disparate community practices and methods of resolving disputes. In an attempt to help resolve the more serious of these disputes, Parliament empowered the Judicial Committee of the Privy Council to hear and resolve them. This body sat for some three hundred years hearing a bewildering array of tribal disputes particularly arising from India, Africa and the Caribbean and continues to do so from a few relics of the Empire. New Zealand, Australia and Canada all subscribed to this jurisdiction. It worked well because their lordships were removed from the dust of conflict and could bring to the problems a truly impartial mind, encouraged by the fact that all decisions were required to be unanimous. For the purposes of Williams J’s thesis, the crucial thing is that tribal customs and beliefs in these cases were treated as questions of fact to be decided by applying the relevant standard of proof – beyond reasonable doubt if a criminal case and on the balance of probabilities if a civil dispute. There was no suggestion that it was necessary to incorporate any of the tribal customs into the common law. This practice of dealing with the mores of other societies is widespread and continues to occupy the time of the courts in New Zealand and elsewhere. Thus, in a dispute between a Shia and a Sunni Muslim over a contract which provides that any disputes shall be resolved by the relevant principles to be found in the Koran the court will hear evidence from both sides including if necessary experts on the Koran (Justice William’s tribal elder) and decide as a question of fact which of the parties meets the relevant standard of proof. At no time is it necessary to incorporate Muslim law into the common law. This “house of the law” is known as conflict of laws and would repay a visit from the Judge.
These are some of the more obvious problems with applying the theme of the Judge’s address, and they are so obvious that one is left wondering whether the whole thing is merely a tale of high flown rhetoric, full of sound and signifying nothing; but that would be a grave mistake as a reading of Dr Robinson’s book “He Puapua, Blueprint for Breaking up New Zealand” reveals. Dr Robinson is a scientist by vocation but his scholarly analysis of the various strands which comprise the growing clamour to fracture New Zealand society, puts most academics to shame, and the reason is, it is a factually based analysis of the various strains of this Maori separatist movement. He exposes the mendacity of this agenda which was kept hidden from the public by Labour Party politicians until forced to acknowledge its existence. It is shown to enthusiastically adopt the notion of a New Zealand whose laws are to be based on the customs and practices common among Maori tribes before 1840. It is a travelling companion of: coastal marine claims by Maori, separate Maori health arrangements, destruction of local body democracy, and the teaching of a sanitised version Maori history in the schools and universities. Where it not for this insidious agenda and the constitutional arrangements advocated by Justice Williams the notion would be so fatuous as to barely warrant a mention, but it has wormed its way into decisions of our courts, and we await with trepidation what the Supreme Court makes of the Peter Ellis case. It may be as discussed above that thus far the courts have treated these customary practices as questions of fact in litigation between persons having a Maori blood line although Mr Ellis enjoys no such advantage. It may be that for example the Supreme Court could in the Ellis case simply decide to overturn the long-standing English practice of denying a dead person a reputation (something which always seemed rankled with the surviving families.) It has been common enough over the years for Commonwealth Courts to eschew English legal precedents and strike out on their own. It is also entirely possible that in the Ellis case the court might find some value in having regard to the Maori custom of “mana” surviving death but none of that involves the destabilisation of the common law or a recognition that there are two strains of law governing New Zealanders, any more than a court incorporating into the common law Koranic law involving questions of money lending.
For as long as this government stays in power and the courts continue to be populated with activist judges “not particularly learned in the detail of the law” New Zealand stands at a dangerous fork in the road. We can either follow the broad highway which will continue to lead to the survival of a harmonious, prosperous democracy enjoying race free health care and education, world class infrastructure and (at least pre covid) unfettered personal freedoms protected by the Bill of Rights all backed by the Rule of law; or we can step off on to a narrow winding path of tribal rule which has no signposts and no knowable destination. No doubt in doing so we would all need to subscribe to “Kia wakatomuri te haere whakamua.” Which for those few of you who are not yet fluent in the language it means “I walk backwards into the future with my eyes fixed on the past.” I can think of no more important crusade facing the next generation but to cast off the brain washing to which they are being subjected and choose the values which are practiced around the civilised world and for which their forefathers, Maori and non Maori alike, gave their lives in two world wars.
*The quotes are transcripts from Justice Williams’ speech – a written version of the lecture was not provided to the Otago Law School. The speech can be viewed HERE.