Is tikanga law? Should it be treated as binding not only in te ao Māori, but as part of the law of the land, applicable to us all?
The apparent effect of the Supreme Court’s decision in Ellis v R is to give a positive answer to both those questions. Expert evidence described tikanga as “the right Māori way of doing things”, and “the values, standards, principles or norms that the Māori community subscribe to.” The judges themselves stated that “tikanga as law is part of the common law of Aotearoa/New Zealand,” and referred to tikanga as “the first law of New Zealand [that] was not displaced or extinguished by the arrival of the English common law”. While a minority of judges disagreed, the majority said that tikanga was relevant to the decision they had to make and were prepared to apply it to the parties involved, none of whom were Māori so far as anyone knew.
A seismic revolution
This is not just a “revolution”, says Professor Peter Watts KC, it is “seismic”. If the decision is taken to its logical conclusion, it will fundamentally reshape our constitutional framework and social fabric. Watts is careful not to take sides on the merits or relevance of tikanga in itself, but he offers a number of important critiques of the majority’s decision. In addition, there are good reasons to be concerned about the implications for freedom of religion and belief.
The question in Ellis was whether an appeal could continue when the appellant had died. There were standard legal tests available to answer this question which the lawyers were addressing, when one of the judges suggested that they should also make arguments about whether tikanga applied. That alone is unusual. In his scholarly article, Watts notes that a court can point out when parties “completely overlook a binding rule or precedent ... and require them to address the point.” That was not the case here.
Inconsistent with the courts’ foundation and jurisdiction
The decision is not just procedurally unusual. Watts argues that it is inconsistent with the courts’ own foundation and goes beyond its jurisdiction. He traces the history of the courts in New Zealand, which were established not by te Tiriti o Waitangi | the Treaty of Waitangi, but by statutes passed by New Zealand governments. Beginning with colonial-era legislation, these statutes gave our courts the same jurisdiction and law as the English courts and tasked them with applying it “so far as applicable to the circumstances of the said Colony”. In other words, “English law prima facie applied, and there needed to be a compelling reason why it would not.” Tikanga was therefore relevant in cases involving “customary property rights and some matters that were intrinsically Māori.”
In addition to those legal cases, there might be moral or political reasons to recognise tikanga’s important role and authority between Māori and over Māori matters. This would arguably be consistent with the Treaty’s guarantee to Māori of rangatiratanga. It could also recognise the growing role that Māori culture and traditions play in our national conversations and values. However, Watts says, it was wrong to say, as the majority in Ellis did, that tikanga is or has always been part of New Zealand’s common law, or that it was never displaced. And not only was it wrong, it was inconsistent with the statutes that give the courts, including the Supreme Court, their powers.
A democratic deficit and rule of law concerns
Watts highlights a number of other concerns with the reasoning in Ellis, including that it was an improper way “to transform the common law and legal method of the country.” The courts do not have that authority and they lack the democratic legitimacy to make changes of this nature. The Court also made it clear that tikanga “is not fixed” and that the courts have no authority to “pronounce on or develop the content of tikanga,” as “tikanga remains rooted in its own world.” This raises serious rule of law questions; how are ordinary citizens meant to know what the law is or regulate their conduct accordingly? And as Watts says, “there is an obvious democratic deficit in permitting part of the content of the law to be determined by ‘experts’ from only one part of the population.” In fact, he says, “the majority has introduced a form of co-governance that was not part of the existing constitution.” Changes of that magnitude should only be made by proper process, not by less than a handful of unaccountable judges.
Tikanga in our law schools
Despite these concerns and this arguable lack of legitimacy, tikanga is already being treated as part of New Zealand’s law. It is a standard and stand-alone subject in our law schools and increasingly a part of legal textbooks. In fact, the Council for Legal Education mandated that tikanga be taught as part of all compulsory law subjects, only for Parliament to strike this down as an “unusual or unexpected use of powers”. There is “no other compulsory law subject that is not only a stand-alone compulsory law subject, but also a compulsory component of every other compulsory law subject”, said the Regulations Review Committee.
Interestingly, that Committee considered that compulsory education in tikanga did not limit freedom of thought, conscience, or belief, because merely requiring students to learn about tikanga “does not mean that they must then practise tikanga in their personal lives or agree with all concepts in te ao Māori.” But when tikanga is treated not merely as a subject for study but a source of legal obligation, the position is rather different.
The spiritual dimension of tikanga
This is where the spiritual dimension of tikanga becomes relevant. Tikanga is not merely a set of rules. According to the Law Commission, tikanga is “a complete set of principles” comprised of “a coherent, integrated system of norms,” one that has “spiritual and socio-political dimensions that go far beyond the legal domain”. Tikanga is grounded in “[t]he Māori worldview [which] stresses the importance of te Ao Wairua (the spiritual realm) as being the source of all things.”
In its extensive paper, the Law Commission considered a number of tikanga norms, such as mana. Often understood as something like dignity or prestige, mana is in fact “a broad concept ‘combining notions of psychic and spiritual force and vitality, recognised authority, influence and prestige ...’. Mana has also been described as the force of the ancestors at work in everyday matters.” Mauri, the “life essence” that all things have, is said to be “the actual life force connection between the gods and earthly matter. It is stated that all things have a mauri including inanimate objects so it can be found in people, animals, fauna, fish, waterways, rocks, mountains.” Tapu is similarly spiritual, recognising “the inherent value of each individual and the sacredness of each life” as well as being a means of imposing “spiritual prohibition or protection” to protect people, property or places. Kaitiaki, or guardians, have obligations “to protect the spiritual and physical wellbeing of environmental resources in their care”, including “an intrinsic duty to safeguard the mauri of the environment.”
What might it look like to impose obligations that have an essentially spiritual element on those who hold different beliefs? This is not a rhetorical question. Already the practice of rāhui—“restricting the use of a natural resource or an area by implementing a state of tapu to protect it”—is becoming more common. The tikanga experts who advised the Court in Ellis noted two examples where local iwi imposed a rāhui. The first involved a rāhui over the Waitākere Ranges in response to the threat of kauri dieback; “[t]his was unilaterally imposed in response to perceived central and local government inaction”. Similarly, a rāhui on local beaches prohibited fishing after the volcanic eruption and deaths at Whakaari (White Island), including because two of the bodies had been lost at sea. The rāhui was said to have had “a negative commercial and fiscal impact on businesses and affect[ed] usual pre-Christmas and holiday ocean activities”, though it, like the Waitākere rāhui, was apparently “overwhelmingly respected” by the community.
There are complex questions about one community group regulating areas of common life on the basis of their particular customs, beliefs, or view of their responsibilities. The questions are perhaps even sharper and more important when they involve spiritual matters and conflicting ideas about ultimate truth, reality and allegiance. Before Ellis, those regulations had the force that influence, local authority, community agreement, or social stigma could give them. After Ellis, do they have more force than this? Are they, as an expression of tikanga, part of our common law, enforceable against us all? Or an influence on the interpretation or development of the existing law? Or relevant but incompatible with existing law and therefore of no legal effect? As Watts says, the Ellis majority gives us no more than a “rudimentary guide” about tikanga’s role in future, resorting to phrases like tikanga “will be relevant when the facts suggest it is”.
The Supreme Court has opened up questions with no clear answers
The Supreme Court was asked to answer a specific question in a particular case. By asking and answering their own question, they have opened up many more, and more significant, questions to which there are no easy answers. Perhaps this is consistent with the remarks that some of those judges have made elsewhere about the need to “decolonise” the law, starting with the “new place of the Treaty and tikanga in law”. Perhaps, too, they thought they were doing the nation a service.
Whatever they thought they were doing, we have to wrestle with the long-term implications of their decision and the emerging place of tikanga in public life and law. It is true that the majority’s view of tikanga was technically obiter—not necessary to the ultimate outcome of the case and therefore not strictly binding on judges in future cases—but it seems clear that these questions are not going away. Already Watts cites a recent case on trustee discretions, where the High Court “accepted that tikanga was in principle part of the [relevant] law ... whether or not any Māori parties were involved.”
As he says, “[i]t is not for the courts to rewrite or re-right the constitution”. But that is what they have attempted to do. In Watts’ terms, it is a revolution, one which “is yet to establish its legitimacy.”
