ANTHONY GRANT: TIKANGA - THE UNKNOWN LAW THAT BINDS US ALL

The law of Tikanga troubles me.

My concerns stem in part from my experience as a student at Auckland University in 1967 when I was enrolled to study Mãori.

The Mãori oral exam was held at the end of August and I was due to leave the country a few days later for University in England. As I walked towards the building where I was to be examined I met the student who preceded me and asked him how the examination had gone. He said it was "hopeless" as "I couldn't understand the examiner's dialect".

In saying this, he appeared genuine and quite dispirited.

(I didn't have this problem as I had attended the sessions that taught the dialect that the Mãori faculty promoted and I passed the exam.)

This incident has been on my mind as I reflect on the so-called principles of Tikanga.

In the 1960s, the Mãori language and much of Mãori culture had almost been obliterated. Mãori culture was hanging by a thread. It wasn't even possible to buy a Mãori dictionary. The Williams Mãori dictionary, which was the definitive dictionary at that time had long been out of print and there were only six copies of it in the university library. The Mãori faculty was critically dependent on those six books.

The student who preceded me for the oral exam was Mãori by race. The fact that he couldn't understand the questions he was asked in a Mãori oral exam showed that the Mãori language at that time, had different dialects, and that in some cases at least, the dialects were so divergent that the speakers couldn't even understand each other.

As I understand Tikanga, it assumes that in general all the Mãori tribes had similar principles for the regulation of their societies, being principles that in general should apply to New Zealand today since Winkelmann CJ said in the Supreme Court in Ellis v R [2022] NZS114 that Tikanga "was the first law of New Zealand and was not displaced or extinguished by the arrival of the English common law" [172]

In the same case, Glazebrook J said that “Tikanga Māori principles are part of the common law of Aotearoa." [85]

The Judges of the Supreme Court in the Ellis case said the following about Tikanga:

(a) That Tikanga involves “Mãori principles".

(b) Tikanga "may require appropriate consideration of the Mãori language, customs,

beliefs, and the importance ofthe community, whanau, hapu and iwi." [99]

(c) Tikanga "includes all the values, standards, principles and norms that the

community subscribe to ... " [111] [169] Mãori

(d) "Tikanga will need to be considered where it is relevant to the circumstances of the

case." [117]

(e) "Some Tikanga might be tapu (sacred) and kept confined to certain expert people."

(f) Tikanga "is a system of law providing predictability and templates and frameworks to guide actions and outcomes." [180]

(g) "Tikanga Maori means the right Mãori way of doing things. It is what Mãori consider

is just and correct." It includes all of the values, standards, principles or norms that

the Mãori community subscribe to, to determine the appropriate conduct" (Sir HM

Mead and Prof Temara, paras 25 and 26. This report is annexed to the Ellis decision).

Although the Supreme Court has said that Tikanga includes "all of the values, standards, principles or norms that the Mãori community, subscribe to, to determine appropriate conduct" if as recently as the 1960s the Mãori tribes and sub-tribes were unable even to communicate with each other because they spoke so differently it seems strange and, dare I say it, unconvincing that they should have been able to agree upon such a comprehensive set of rules for the regulation of their societies in such a short time thereafter.

This conjecture seems to be justified by what is being said in some of the Tikanga judgments that are being delivered by the Courts, since it is said that the principles of Tikanga may differ from tribe to tribe and from sub-tribe to sub-tribe.

If that is so, how can the principles of one sub-tribe - which may differ from the principles of other tribes and sub-tribes - become the national law of New Zealand?

One of the biggest difficulties with Tikanga is trying to identify what the word means in

different contexts. In the Ellis case it was held that "Where questions of Tikanga arise in

the High Court, that Court may state a case and refer it to the Mãori Appellate Court, with the decision binding the High Court" [125] (and presumably binding the Court of Appeal and Supreme Court as well).

Many people may think it extraordinary that the High Court, the Court of Appeal and the Supreme Court are to be controlled by the Mãori Appellate Court concerning the meaning of Tikanga in all the different contexts where Tikanga arises for consideration.

When it comes to Tikanga, it is necessary to know what the rules of Tikanga are. When the Supreme Court wanted to know the answer to this question in the Ellis decision it relied upon a report from two Mãori experts whose report is annexed to the decision.

In other words, the Supreme Court appeared to have no confidence that a lawyer was able to inform them what Tikanga means or that there was any written source to which the Court could go.

When is giving judgment in the Supreme Court in the Ellis case, Justice Williams, who

is Mãori, made it clear that the Judges do not have sufficient knowledge of Tikanga to be able to authoritatively declare what it requires. In his words:

"while Judges must increasingly work with tikanga, they have neither the

mandate nor the expertise to develop or authoritatively declare the content of

tikanga. As with legislation, those roles belong in another place." [270]

Unhelpfully, the location of the "other place" was not specified.

What Williams J says in that passage is that Judges have insufficient knowledge of Tikanga to be able to declare what it requires. If Judges lack that knowledge, so too do all practising lawyers.

Section 4 of the Lawyers and Conveyancers Act 2006 requires that all lawyers in New

Zealand must comply with four fundamental obligations, the first of which is "to uphold the rule of law."

Despite Winkelmann CJ's description of Tikanga as " the first law of New Zealand" I doubt that any lawyer in New Zealand has sufficient knowledge of Tikanga to be able to comply with the obligation in section 4 of the Lawyers and Conveyancers Act.

In circumstances where Parliament requires that all lawyers must “uphold the rule of law" - which appears to require us all to comply with the requirements of Tikanga, it is reasonable to ask Parliament to clarify what Tikanga means and what it requires of all lawyers and New Zealand citizens.

Barrister, Anthony Grant, is an adviser and litigator on the laws concerning Trusts and Estates