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Te Hunga Rōia Māori/the Māori Law Society responds to Gary Judd KC

17 May 2024

| Author: Tai Ahu

We write this open letter to our members in response to the recent complaint made by Gary Judd KC.

The role of Te Hunga Rōia Māori o Aotearoa is, amongst other things, to “promote fellowship and mutual support amongst its members” and to “promote the education of our members in terms of tikanga Māori and Te Ture Pākehā”.

In brief, Judd KC wants a member of the committee of the House of Representatives to move to disallow the tikanga requirements passed by the New Zealand Council of Legal Education (NZCLE).

Those regulations require law schools by 1 January 2025 to provide for the teaching and assessment of tikanga Māori in compulsory law courses and to establish a new compulsory law course on tikanga Māori.

Judd KC complains that the regulations require law students to learn about “so-called laws” which are “inconsistent with the rule of law”.

He says the “tikanga regulations are symptomatic of a dangerous trend…where those with the power to do so seek to impose the beliefs and values of one section of society upon the community as a whole” and that “they [NZCLE] do so in this instance by pretending that tikanga is law”.

He claims that pretending tikanga is law flouts the two pillars of the New Zealand constitution – the “continuing commitment to the rule of law” and “the sovereignty of Parliament”.

 

Court recognition

The courts’ recognition of tikanga Māori as law may be an intimidating prospect for some in our legal profession, particularly those with little or no knowledge or experience of tikanga Māori.

However, any debate about the place of tikanga Māori in our legal system and in our law schools needs to be informed by accurate information.

Te Hunga Rōia Māori considers Judd’s views outdated and incorrect.

First, Judd defines law as “a body of rules, proceeding from formal enactment or from custom, which a particular state or community recognises as binding on its members or subjects”.

He does not say why tikanga Māori would not meet this definition; he simply invites us to “compare the description of tikanga with the criminal law, the law of contracts or any of the subjects which law students must now pass in order to get their degree” and baldly asserts it does not.

The relegation of tikanga to mere “beliefs and values” is reminiscent of the remarks by Chief Judge Prendergast in the Wi Parata case, that Māori “were found without any kind of civil government or any system of law”, and that Māori were “incapable of performing the duties, and therefore of assuming the rights, of a civilised community”.

This view is antiquated, unsophisticated and inconsistent with several court decisions.

Second, it is unsurprising that Judd KC does not consider tikanga as law. He offers no analysis of the core principles of tikanga, how they operate as regulators of normative behaviour or how they determine substantive legal outcomes. We commend the work of Te Aka Matua o te Ture – the New Zealand Law Commission, which has recently pointed out: An appreciation of the analytical coherence and consistency of tikanga also helps to dispel continuing doubts about the legitimacy and efficacy of tikanga as a source of regulation and of identifiable rights and obligations. Tikanga has the coherence and consistency that are vital for any legitimate regulatory system.

Third, Judd mischaracterises Glazebrook J’s judgment in Ellis, complaining that “certainty, consistency, generality, reasonableness and not being repugnant to justice and morality are all thrown out as necessary requirements because tikanga cannot pass those tests”.

This is incorrect. Justice Glazebrook was acutely aware of the need for certainty and consistency in our law, stating that: The case law to date on tikanga as part of the common law has been relatively limited. Further development will be gradual as cases arise. Certainty, consistency and accessibility are strong values in our legal system. Precedent will still bind as it does conventionally, unless distinguishable. This is why the common law method is generally for the law to develop incrementally as it will continue to do with regard to the application of tikanga in the common law.

Finally, the idea that tikanga Māori is “law” is nothing new. Tikanga Māori has long been a source of New Zealand law. The English Laws Act 1858 caused English law to apply “so far as applicable to the circumstances of the said colony of New Zealand”. Tikanga Māori was one (the first) of those circumstances.

Some of our earliest cases recognised tikanga Māori as law, including R v Rangitapiripiri (which in 1847 held that tikanga Māori applied inter se), and Baldick v Jackson (which in 1910 held that an English statute declaring ownership of whales in the Crown did not apply, based on customary fishing practices protected by Treaty of Waitangi).

 

Modern cases

The recognition of tikanga as law has continued in modern cases, including Takamore (which recognised tikanga Māori as a value of the common law) and the Trans-Tasman Resources Limited case (which recognised tikanga Māori as “a body of practices and customs, part of which can be described as custom law”).

Te Hunga Rōia Māori stands firmly in support of the decision of NZCLE to include tikanga Māori as a compulsory component of law courses from 1 January 2025. The decision was made after a long period of consultation with lawyers and legal academics from our law schools – Māori and non-Māori alike.

We welcome an opportunity to discuss these views with Gary Judd KC and with the New Zealand Council of Legal Education. ■

 

Tai Ahu is the Tumuaki Tāne o Te Hunga Rōia Māori o Aotearoa

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