October 2012 Māori Law Review

Editorial – Deputy Chief Judge Caren Fox – Re-launching the waka (3)

This month's editorial reproduces extracts from the speech given by Deputy Chief Judge Caren Fox on 3 October 2012 at the function held to celebrate the re-launch of the Māori Law Review.

Introduction

It is a pleasure to celebrate the re-launch of the Māori Law Review.  It is also a time to celebrate its new association with the Faculty of Law, Victoria University.

I particularly want to acknowledge Tom Bennion, who had the stamina to keep this small but important publication going from 1993 until recently.

Importance of the Māori Law Review

The Māori Land Court bench is pleased to see the return of the Māori Law Review and its new website.  Our Court has been the only Court within the same level of courts – namely the District Court, the Family Court, and the Environment Court – without a regular law report series to provide commentary and updates on judgments and issues in the law, including law reform.  It is an important and well-respected publication.

If an essential element of a developed justice system is that it should be open, transparent and accessible – then the Māori Law Review will contribute to the quest to ensure that Māori Land Court judgments and Waitangi Tribunal reports are as accessible as possible.

It will contribute towards this goal because the Māori Law Review will complement the existing work that has been done to make our judgments widely available on websites for the Māori Land Court and the Waitangi Tribunal.

Māori Appellate Court and important Māori Land Court judgments may now be accessed from the Māori Land Court site (http://www.justice.govt.nz/courts/maori-land-court).

Most of the Waitangi Tribunal pre-publication versions of its reports are posted on its site (http://waitangitribunal.govt.nz/).

Role of the Māori Law Review

Returning to the role of the Māori Law Review, having his Hon. Judge Coxhead as a consultant editor should ensure that the summaries and commentary on our judgments will be reported and are timely.

I am also certain that the Review will provide our judges and others in the law profession with important information on developments emerging from other Courts, comparable jurisdictions or superior level Courts. For example, in the June edition, the High Court decision in R (Queen) v Mason [2012] NZHC 1361 is summarised and discussed. This case concerned Mr Mason who was charged with murder and attempted murder. His counsel made an application that Mr Mason be dealt with in accordance with tikanga Māori.  In the July edition Tom Bennion has summarised and commented on Paki v Attorney-General [2012] NZSC 50 – a judgment of the Supreme Court concerning navigable rivers.

I also consider that the Māori Law Review has another important role to play in monitoring and reporting on policy developments. Māori land legislation, for example, has undergone a history of change and reform.  In fact one politician from the early 20th century was heard to bemoan the fact that there was no thicket greater than the thicket of our native land laws.

That history of change and reform has been a cornerstone of this field of law. For example, since the enactment of Te Ture Whenua Māori Act 1993, a number of significant reviews of law and policy relating to Māori Land have been conducted.  The first review following the 1993 legislation was conducted in 1997-1998, hui, wananga and focus groups were held as a result from 1997-1999, a review of Māori Land Tenure was undertaken in 2006, a Māori land owners aspirations review was coordinated in 2009-2010 and the Government has recently announced another review to consider how to unlock the potential of Māori land.

Monitoring the nature of these developments is important as it may signal potential changes in policy and law.  The Māori Law Review has an important part to play in informing us all on those developments.

In addition to monitoring policy developments, the Review could play a useful role in initiating and carrying forward debate on policy questions.  For example, there are regular calls for abolishing the Māori Land Court.  What would replace it has not been so clearly articulated.  Although judges cannot participate in such a discussion, other than through providing advice on technical matters, we are nonetheless interested in what alternatives could replace the important and culturally distinct infrastructure that currently surrounds multiply-owned land.

Given the nature and experience of the Review’s editors and consulting editors, their views could generate much debate over issues concerned with how the status quo or any new system should deal with:

  • the dynamics of Māori land as cultural heritage – or tāonga tuku iho rather than an economic base; and
  • the consequences of the Crown native land system designed as it was to break down communal title and replace it with individualised title;
  • the complexities of multiply-owned Māori land; and
  • the nature of any forum that should deal with disputes concerning that multiply-owned land.

On that note, I wish to end by applauding once again the decision to re-launch the Māori Law Review and I look forward to many happy hours reading it.

Deputy Chief Judge Caren Fox

3 October 2012