June 2013 Māori Law Review
Marama Broughton's paper to the Māori Law Review symposium on the Treaty of Waitangi and the constitution.
12 June 2013
A constitution includes a hapū, whānau, iwi and Crown relationship
In my view, a constitution includes a hapū, whānau, iwi and Crown relationship. The Constitutional Advisory Panel terms of reference seem to exclude a constitutional model based on these relationships and the development of a tikanga-based constitution.
Recent court decisions appear to indicate some movement or a willingness by some members of the judiciary to recognise tikanga as law. And yet the terms of reference for the panel don’t seem to recognise this. From my experience, there are fundamental changes that need to take place within university law schools to more accurately reflect the relationship between tikanga, Te Tiriti and Crown law.
I wish to put forward to you today not an argument for or against this model but rather a discussion about why this is not a consideration of the Panel. I do want to acknowledge however that the terms of reference of the Independent Iwi Constitutional Transformation Working Group – Aotearoa Matike Mai are to work on developing a model for a constitution based on tikanga and fundamental values, the 1835 Declaration of Independence and Te Tiriti o Waitangi.
So what is tikanga?
Ani Mikaere says that tikanga is a practical expression of a philosophical framework. Tikanga is the first law of Aotearoa and the way that we relate to each other. Tikanga is law.
How does the notion that “tikanga is law” sit in the Crown legal system?
Cases such as Ngāti Apa, Takamore and R v Mason show that the courts are very much undecided about the application tikanga within, beside, above or below the common law. But there appears to be a shift towards the courts accepting tikanga as law. Courts have either said that tikanga is a value that must be considered (Takamore in the Supreme Court) or that tikanga fits inside the common law if it satisfies the common law test of “what is common law” (Takamore in the Court of Appeal). Another approach by the courts is using the example of native title and tikanga remaining law unless it has been explicitly extinguished (R v Mason, Ngāti Apa).
All these examples show a willingness within the judiciary to consider tikanga. But it is unclear whether that is a willingness to consider tikanga as law.
So if there is this shift, then why is it not a paramount consideration of the constitutional panel?
Should the Panel be taking the same direction as the courts? Could the Panel have the opportunity to provide clarification or direction for the courts?
The Panel is taking into account the Treaty of Waitangi and Māori seats among other things. Granted, tikanga might be taken into consideration when discussing these things.
But I am talking about a framework. A framework where we don’t have to rely on, or point to, Te Tiriti o Waitangi to assert rights and interests in order to make the argument that tikanga is important and that tikanga is law. For example, asserting that something is taonga under Article 2 of Te Tiriti and therefore kaitiakitanga has to be exercised. This example illustrates trying to assert tikanga through the Te Tiriti document which it not necessarily the only route to take.
Even though it appears that mind-sets in courts are shifting, including reference to discussing a tikanga-based constitution in the terms of reference for the constitutional panel, might be wishful thinking.
And I might illustrate this by sharing my experience at law school with you. Tikanga is not part of the curriculum at law school. Although trust me I have tried to apply a tikanga-based approach to many assignments and papers. But the problem with this is that, first, I am not given the tools or taught the skills to analyse issues based on Maori world views and laws. Secondly, by and large, a majority of lecturers have limited knowledge of tikanga and therefore have no idea how to mark it or if it is even right. And thirdly, which really hits the nail on the head of how these ideas are perpetuated is that without fail I am told that I must always bring my argument back to the law. The Crown law that is.
So where to from here?
A tikanga-based constitution would look at how a constitution comes from tikanga.
So how can we get to a place to even start discussing this?
Government could start the discussion by including it in the terms of reference given to the Constitutional Advisory Panel. University law schools could change their curriculum. Or, the discussion could start in the community?
As a rangatahi, I want to see Aotearoa move forward.
If we continue to be constrained by a mindset that the world began in 1840 and that Crown law reigns supreme and should be the paramount consideration, then I do not believe that we will be able to move forward.
We could look at this constitutional conversation as an opportunity. An opportunity to bring forward a model that has been around for the last 1000 years.
Even though we have good people with good intentions, we cannot make changes without a longer conversation that is unconstrained by a panel that has no mandate to consider tikanga as the basis of a constitution.
We need to change the way that law students view these issues because law students are our future judges.
We need to look at other countries and indigenous peoples to gain clarity on how things might work.
We need to look at how we came to have an unwritten constitution today and remember that this unwritten constitution we have has only been around for about the last 200 years. That is only a snippet in time. Only a drop of water in the bucket of the history of Aotearoa.
I guess what I am asking for is for a wider consideration of what law is and where it has come from in Aotearoa New Zealand.