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Lore and the law: the tikanga question and freedom of expression

10 May 2024

| Author: David Harvey

LawNews Issue 14 for 3 May 2024 published an article by Gary Judd KC. It was an edited version of a complaint to Parliament’s Regulations Review committee. The complaint is about a regulation making the study of tikanga Māori compulsory for law students.

The article and its publication have attracted criticism and comment. One commentator, whom I’ll call “Barrister X”, posted the following on Linkedin: I am disappointed that The Law Association published this article and made it the cover page of its weekly newsletter. It further emphasises a very unhelpful commentary about tikanga being incapable of being law. This reminds me of the doctrine of discovery and the notion that indigenous peoples were so uncivilised that we were incapable of having legal systems.

I support free speech, but I hope for greater leadership in the current anti-Māori climate.

There are two issues that arise from this post. Despite Barrister X’s stated support for free speech, he fails to recognise the difference between the message and the messenger.

Clearly, Barrister X’s disappointment should be directed not to The Law Association and LawNews but to the substance of Judd’s article. But no. His concern is that the article was published in the first place.

In so saying, he ignores a principle that underlies the freedom of expression which is known as content or viewpoint neutrality.

The concept comes from US First Amendment Law. It stands for the principle that if government actions implicate speech rights, those actions must be done in an even-handed way.

Underlying the concept is the importance of maintaining the right to free expression without necessarily endorsing the message of that expression – so long as an equal platform is afforded to contending points of view.


Not endorsement

The concept translates into several other contexts apart from government actions and it is here that the role of LawNews and The Law Association come into the picture.

The fact that LawNews published the article by Gary Judd does not automatically mean it endorses or supports his point of view. It merely provides a neutral platform – something that is misunderstood in many debates about freedom of expression.

But I don’t think Barrister X is suggesting The Law Association endorses Judd’s viewpoint. He goes further and expresses disappointment that the article was published in the first place.

Thus, he suggests that Judd should be deprived of a platform. That has implications for Judd’s freedom of expression and the freedom of others to receive his point of view.

If indeed that is Barrister X’s position – and I hope it is not – then the conclusion to that suggestion is that The Law Association should act as some form of censor in determining what it should and should not publish.

Admittedly, editorial decisions arrive at a similar result but the suggestion that a point of view should be censored, banned or otherwise redacted because some readers may be disappointed amounts to a stifling of the debate that freedom of expression fosters.


Doctrine of Discovery

Barrister X also suggests Judd’s view reminds him of the Doctrine of Discovery. Perhaps Barrister X would benefit from reading Professor Paul Moon’s discussion of the so-called doctrine in his article “The Doctrine of Discovery in New Zealand: A Fresh Historical Conspiracy Theory”.

Professor Moon points out: The ‘doctrine’ itself derives from a sentence contained in a Papal Bull issued in 1493 by Pope Alexander VI. The Bull’s purpose was to support Spain’s wish to assert exclusive rights over certain territories discovered by Christopher Columbus the previous year. The Bull set out the specific locations (one hundred leagues west of the Azores and Cape Verde Islands) that would be assigned solely to Spain and imposed a prohibition on other Catholic states approaching those territories without Spanish approval. The Vatican’s view was that any territories outside of Europe that were not inhabited by Christians were open to claims of ‘discovery’ (and implicitly, some form of sovereignty) by whichever Catholic power reached these territories first.

This is the essence and extent of what later became known as the Doctrine of Discovery.


‘Preposterous’ interpretation

What has happened since, according to Moon, is that lawyers have resuscitated the idea that the Doctrine of Discovery guided European colonisation for four centuries.

But as Moon suggests, this claim is preposterous to anyone familiar with the way in which various European states – especially Britain – developed their colonial policy in the 18th and 19th centuries.

Britain’s colonisation of New Zealand was never based on the principles of assertion of territorial sovereignty over a colony and the subjugation of indigenous populations.

Moon points out that Britain knew about New Zealand’s location from the late 1640s but sent an expedition to the country only in 1768. It was not until 1840 that Britain (only reluctantly) asserted sovereignty over its people living in the territory.

This lethargy is hardly the behaviour of an avaricious colonial power, intent on devouring territory to rule over.

Although Hobson’s proclamation of May 1840 – ‘I…assert…on the grounds of Discovery, the Sovereign Rights of Her Majesty over the Southern Islands of New-Zealand’ – looks like proof of the Doctrine of Discovery in action, it is not because it ignores the context surrounding the making of the proclamation.


Fabricated claims

Moon cites several other reasons which expose claims that the Doctrine of Discovery (if it still existed) affecting New Zealand’s colonisation was fabricated. In summary these are:

  • By the time Britain commenced colonising New Zealand, it had severed any ties with the Catholic Church for centuries, and any Catholic influence was actively repudiated.
  • Britain’s imperial expansion in the 18th and 19th centuries lacked adherence to any doctrine. The empire was acquired ‘in a fit of absence of mind’, as John Seeley famously observed in 1883.
  • The motives behind the Doctrine of Discovery were religious and territorial. British colonisation, on the other hand, was largely secular and focused primarily on trade instead of territory.
  • The doctrine was devised for a specific region, of which New Zealand was not a part, for a colonising power which never had any territorial claim to New Zealand and at a time when New Zealand’s existence was unknown to Europe.
  • There is no mention of the Doctrine of Discovery in any British government document relating to New Zealand’s colonisation – neither directly nor implicitly – and neither did its precepts form part of British policy in this period.
  • In the approximately two years leading up to New Zealand’s cession of sovereignty in 1840 via the treaty, British policy on the territory was developed on principles that contravene the central tenets of the Doctrine of Discovery. This is especially important because it negates the argument that somehow, the general sentiment of the doctrine embedded itself in British colonial policy in the 19th century as a precursor to New Zealand’s colonisation.

Had Barrister X omitted a reference to the discredited Doctrine of Discovery, his assertion might have carried more weight in that it was well-known that indigenous peoples had their own rule-based systems and lore by which they ordered their communities and their affairs.


Intemperate outburst

A more impassioned critique of Judd’s views came from the Dean of the AUT Law School, Kyhlee Quince. She stated on social media: “I suppose it was inevitable that one of the old racist dinosaurs would make a pathetic squeal in an attempt to preserve the status quo…. Mr Judd and his “matauranga Maori is not science” friends can go die quietly in the corner…”

Quince has been criticised for her intemperate outburst. One commentator suggested that “the mindless abuse by Dean Quince of Mr Judd is something you might expect from an excitable first year law student, not the Dean of a Law School.”

I think if I were to critique Judd’s article, I would rather approach it from the basis that he is wrong and then set out to prove why he is wrong.

Having said that, I must say that Quince is entitled to express her point of view and in whatever terms she wishes. That is what freedom of expression is all about.

By the same token, “racist dinosaurs” squealing “in an attempt to preserve the status quo” are entitled to express their point of view.

And LawNews is entitled to publish both of those points of view (although Quince prefers social media as her platform of choice) without endorsing or subscribing to the content of the point of view.

What freedom of expression allows is to examine the ideas expressed. Barrister X may have fallen into a trap in suggesting that The Law Association should act as a censor, and possibly misunderstands the discredited “Doctrine of Discovery”.

Perhaps in a subsequent article – which he might like to publish in the viewpoint-neutral LawNews – he can explain in some detail where Judd has fallen into error.

The other advantage that freedom of expression gives us is the opportunity to assess the quality of the ideas expressed by the speaker. Readers may reach their own conclusions about those of Quince. (See Mathew 12:36 – 37.) ■


Dr David Harvey is a retired District Court Judge, now working as a barrister at Sangro Chambers

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