November 2018 Māori Law Review

Whakaaro Māori and the role of the criminal lawyer – Chris Merrick with Corin Merrick

Hui-a-Tau Conference 2018 - Te Hunga Roia Māori o Aotearoa

Chris Merrick, barrister with Corin Merrick, barrister

October 2018

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) held its 30th annual conference at Rotorua in October 2018. The theme of the conference was “Ka kuhu au ki te ture, hei matua mo te pani – I seek refuge in the law, for it is a parent of the oppressed” – Te Kooti Arikirangi Te Turuki. The conference provided an opportunity for lawyers, law students and members of the judiciary to discuss a wide range of legal issues relevant to Māori.  The Māori Law Review is proud to support Te Hunga Roia Māori and to publish a selection of the presentations from the conference. The following paper was given by barrister Chris Merrick and includes a te reo Māori contribution by his wife and fellow barrister Corin Merrick on what it means to be a Māori lawyer.

Timatanga kōrero | Introduction

Kei ngā kaihoe o te waka o te ture, tēnā koutou, tēnā koutou, tēnā tātou katoa.

5 September 2015. Waitangi. Can you see the island? A memorable speech by his Honour Justice Joseph Williams at the Hui-a-tau.

As we celebrate 30 years as an organisation, I reflect on what his Honour said that day about the island in the minds of those who met at Tūnohopū in 1988:[1]

The island, I suggest, in the minds of that small group gathered at Tūnohopū in 1988, was a reimagined system in which two sources of law were recognised and normalised – Ture Pākehā and Tikanga Māori. A system in which Māori tradition is valued and respected alongside that imported in 1840. A nation not only bi-cultural but bi-lingual; in short a Treaty partnership in the very bones of our constitutional arrangements.

I want to touch on some of the specifics of Justice Williams’ speech that day in this paper, because as great speeches do, it started something in my thinking and provoked action. It was these words which were still ringing in my ears when I got back to the office from Waitangi that year:

Can we see the island in the sentencing work we do? And the use of s 27 Sentencing Act 2002 cultural reports? Any island at all? Why are iwi not routinely involved in the sentencing process? 4,600 Māori prisoners each have a cultural narrative which, if told, might have produced a different result

...

How do we help to make the system more amenable to tikanga Māori in the way we counsel and advise, in the way we advocate, in the way we judge, in the way we write, in the language we use?

It is with that in mind that this paper seeks to look at the role that whakaaro Māori has to play in our roles as lawyers which adds value to our existing obligations and duties in counselling, advising, and advocating for our clients. Obviously, this discussion has wider application than just the criminal law. At the conclusion of this paper, Corin Merrick (tōku hoa wahine), a barrister working in family law and youth law, offers in te reo Māori with a Pākehā interpretation, her view on being a Māori lawyer based on her perspective as a wahine Māori, informed by te reo and tikanga.

In essence, to carry on discussions about what steps we can take as Māori in the criminal law in order to cultivate a sense of professional responsibility informed by te reo and tikanga Māori.  It is intended that the thinking applied here be applicable whether one defends or prosecutes within our criminal courts, and whether one is starting out in practice, or reflecting on a number of years in practice.

Kōrerorero | Discussion

The role of the criminal lawyer | technical proficiency vs cultural proficiency –  example, s 27 and s 8(i) of the Sentencing Act 2002

Our conference theme this year quotes the whakatauāki of Te Kooti Arikirangi:

Ka kuhu au ki te ture, hei matua mō te pani
I seek refuge in the law, for it is a parent to the oppressed

For those of us working in the criminal law, Te Kooti’s words resonate in the work we do, the people we do it for, and why we do it.

I am sure we are all glad to see that a lot of ground has been made up on the issue of s 27 and s 8(i) in sentencing in recent times.  This is evident in the very recent High Court decision of Whata J in Solicitor General v Heta, a Crown appeal against sentence which covers, in great detail, the issues at play in sentencing when sections 27 and s 8(i) are relied upon.[2] It is significant to note in the context of a Solicitor General’s appeal the consensus between the Crown, defence and Court, that the effects of systemic deprivation are relevant as well as hardship.[3]  It is also significant as it confirmed a 30% discount for s 27 factors was not out of the available range.  That is not to say the work in this area is complete, it will evolve as we continue applying it to the cases of our clients.

Whilst the focus in the recent s 27 discussion has been on getting good information before the Courts in the form of reports to address s 27 and s 8(i), as we know, the focus of the section is not only on a report as a means of presenting that information. The legislative history of the section shows that what was envisaged was a section which allowed those who had traditionally been disengaged with the Court process to be given a voice through this process in order to help address the critical issues facing Māori in the criminal justice system.[4]

With that said, there will be many instances where a report with the assistance of a specialist report writer is necessary, as a compelling voice within a whānau is not forthcoming in order to present the information in a way which can have the impact illustrated in cases such as Heta.[5]

Sections 8(i) and 27 are a concrete example of how, within the role of the criminal lawyer, cultural proficiency can significantly add to the technical proficiency of the lawyer. In the time I have practiced criminal law I am not sure this has always been regarded so by the profession as a whole, or by the public. In short my sense is that cultural proficiency in those working in criminal law has been seen as discrete, “an added bonus” but certainly not essential to one’s technical proficiency. It has, as a result, limited the perceived value that Māori bring to the role of the criminal lawyer (whether defence or prosecution).  That outlook has no doubt caused many young Māori criminal lawyers difficulty in making their way in a predominantly Pākehā criminal bench and bar.

However, as Māori working within the criminal law our experience tells us differently. Our cultural proficiency has afforded us high client satisfaction levels and engagement, improved communication, a different view on dispute resolution, getting that extra piece of critical evidence from a witness in examination in chief or cross examination. The list goes on.

We will often need to look outside the lawyer client relationship for assistance in the course of criminal litigation.  However, when it comes to matters of culture, as they relate to our clients, as Māori working in the criminal law we can’t allow ourselves or others to undervalue the huge benefits to our clients (and our own sense of professional well-being) in taking the lead as counsel. This is applicable in all the work we do, not just in sentencing.

This is not new ground, and there are a number who have written about or taken this approach in the different fields of law over the years, including the criminal law.

However, as the nature of practice in the criminal law evolves so does the need for this type of discussion. That is particularly so at this time, given the issues Māori face in the criminal justice system, the public discussion on criminal justice reform, discussion on diversity in the profession, a relatively young Māori criminal bar, and the high levels of competition between different areas of legal practice for Māori law graduates.

Te rōia me te kiritaki | The lawyer client relationship

Formally speaking, our duties as lawyers and our relationships with our clients are governed by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

The Rules are based on the fundamental obligations of lawyers set out in section 4 of the Lawyers and Conveyancers Act 2006 (the Act), namely—

  • to uphold the rule of law and to facilitate the administration of justice in New Zealand;
  • to be independent in providing regulated services to clients;
  • to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients;
  • to protect, subject to overriding duties as officers of the High Court and to duties under any enactment, the interests of clients.

As outlined in s 3 of the Act, one of the three stated purposes is to maintain public confidence in the provision of legal services and conveyancing services.

The end of the preface to the Rules states:

To the extent appropriate, these rules define the bounds within which a lawyer may practise. Within those bounds, each lawyer needs to be guided by his or her own sense of professional responsibility. The preservation of the integrity and reputation of the profession is the responsibility of every lawyer. (Emphasis added)

To be frank, I only came across this portion of the Rules recently when preparing another paper.  It made me think: as Māori who are lawyers in the criminal law, what does our sense of professional responsibility look like? What does it mean to protect and promote the interests of our Māori clients? What does it mean to us to contribute in our own way to the preservation of the integrity and reputation of the profession? What is it informed by?

In preparation for this paper I wanted to get a snapshot of what the demographic is of Māori practicing in criminal law.  Recent New Zealand Law Society research shows:[6]

  • That Māori, with 820 lawyers, make up 6.1% of the NZ lawyer population compared to its position of 12.8% of the total New Zealand Population;
  • That 29% of Māori lawyers have been in practice for less than 5 years;
  • That 2% of Māori lawyers have been in practice for 40 years or more;
  • That, on average, Māori have 13 years in practice post admission; and
  • That 36.2% of Māori lawyers practice in criminal law, compared to 41.3% in company law, 38.4% in property law, and 37.1% civil litigation (which presumably includes family law).

So, reflecting on those statistics, it would appear that members of the Māori criminal bar are likely to be predominantly in the junior to intermediate career phase, with fewer lawyers sitting in the senior (10 years plus) category.  If we contrast those figures with the Māori charging, conviction, imprisonment, and victim rates of which we are all familiar, in terms of numbers, we as Māori criminal lawyers (regardless of what side) are severely under-gunned and in need of some backup.

Notwithstanding this, in my observation it is an exciting time to be Māori and practicing criminal law, especially as recent judicial decisions would indicate the start of a change of thinking about issues impacting Māori in the criminal justice system. Whilst this paper encourages all Māori at the criminal bar to support one another in incorporating whakaaro Māori into our practise, it is especially exciting to know we are a relatively youthful bar with years ahead to collectively develop its practice whilst drawing on the experiences of those who have gone before us.

Mā tō waka ngā ngaru e wawahi | A whakaaro Māori framework for practicing criminal law

When referencing the whakatauāki of the late Api Mahuika, Justice Williams queried in his 2015 speech:

Āe, e tū ki te kei o tō waka kia pākia koe e ngā ngaru o te wā, engari e tere atu ana tō waka ki hea? Yes, by all means stand by the stern post of your waka, so that you may feel the spray of the future, but the real question is what is the waka’s proposed destination? Where are you taking it?

In this part of the paper I want to focus on the waka itself. That is the practice of the lawyer.

What are its parts? What are the parts made of?

The various parts of the waka have different functions. In our work it is our waka which will part the waves we encounter in our journey through the criminal justice system with our clients. As Māori, the difficulty with the Rules or the Act is that whilst essential, they do not come from a Māori world view. Personally,  I feel something is needed to sit alongside the Act and the Rules to help provide that guidance. Tikanga Māori can counter the many external factors which impact on our roles as criminal advocates, give meaning to being a Māori lawyer, add value to the legal system, and improve the confidence of our clients as participants.

One of the favourite podcasts / TV shows in our kāinga is Ako the series run by Pānia Papa.  Recently, I listened to series 6 episode 6 which discussed the parts of the waka as kupu whakarite.  Drawing inspiration from that episode, and the writings of Sir Mason Durie on the “Whare Tapa Whā”, Corin Merrick and I discussed this paper and came up with the idea of using the waka and its parts to help define our practice in our respective fields of law (Corin – family / youth court, Chris – youth court / criminal).

In this part of the paper, I will share my personal reflections on what comprises the essential parts of my waka, and what that means in practice in the criminal law with some reflections on recent cases.[7] To stress, these are my own reflections only on what I aim for my practice to be, kei ia tangata tōna ake tikanga[8] – I only hope to generate thought and discussion by sharing.

Tōku waka

So breaking down the waka:

  • Te Kei: the sternpost of the waka, the vantage point of the kaihautu (navigator);
  • Niao: the gunwales of the waka which run along the top of the sides and strenghthen it;
  • Te Ihu: the bow or nose of the waka;
  • Takere: the hull of the waka.

Te Ihu – Kounga

Kounga, is excellence, quality or a high standard.  I have chosen that for the nose of my waka as the nose is the aspirational part of the waka, it touches the the wave first, and touches land first.

In practice I see it as surrounding yourself with good people, people who have their sights set on te pae tawhiti and you aspiring to your own.  I learnt the importance of that from a legal perspective as a junior Crown prosecutor learning from some of the best senior criminal advocates in the motu and alongside some very talented and intelligent junior colleagues.

As a result, legal excellence is important to me in my practice, and one of the areas I am hardest on myself if I feel I have not met the mark.

As we know there are many lawyers and judges who model legal excellence (including many Māori), and so it is easy to develop a wide frame of reference for what kounga means in your practice by reading their academic work, talking through legal issues with them, or reading their submissions, and judgments.

Takere – Māia

Criminal advocacy requires courage, and that’s why I would put maia at the hull of my waka.  Your waka can be flash everywhere else, but if there’s a problem with the takere, you’ll know all about it.

Niao – Whanaungatanga

The niao or gunwales of the waka strengthen the sides, hence why I would place whanaungatanga in this position.  Building and maintaining good connections and relationships is essential to the way I choose to practice criminal law.  It can be a lonely place at times, and collegiality and whanaungatanga are critical.

Kei – Manaakitanga

E ai ki te whakatauki, inā te mahi he rangatira – a chief by deeds done.

With the kei being the vantage point of the waka, it also serves as a focal point in how it is perceived by others. If manaakitanga is a key part in the way work is done, people will feel it.  I see manaakitanga as a great leveller and tool for breaking down some of the preconceptions clients have in coming to see a criminal lawyer, or dispute resolution conversations with the other side.  Many Māori clients are legally aided and may have had a previous bad experience or heard stories about legal aid lawyers.  They come to us with many problems much deeper than the legal problem that brings them before the Court.  The act of offering food and a drink to a client attending a meeting at the office, and extending a brief mihi to them and their whānau can go a long way to getting everybody on board.

Reflections on this in practice

Before discussing some instances where I have incorporated te reo and tikanga Māori into my practice, I want to briefly reflect on a time when I did not do so as much. As a Crown prosecutor, I did not have as much knowledge or life experience of whakaaro Māori as I do now.  I now know that these aspects of whakaaro Māori would have significantly added to my role, ability, and perspective as a prosecutor.

In 2014, Corin and I had our first baby and we are raising her and our son bi-lingual. In 2016, I completed the Rūmaki reo programme at Te Wananga Takiura o Ngā Kura Kaupapa Māori o Aotearoa. I went for whānau reasons. Before I went, I told many of my law colleagues I was taking the year to do it.  A common response was, “how will it help your work?”[9] The focus of the question being the reo, whereas I now know the answer is in the thinking as well as the reo. Having done Rūmaki, I would consider myself an intermediate level speaker, and am still on a learning journey, similarly I know some tikanga, but again it’s a life long journey that is a part of our whānau journey.

Ngā hau mihi[10]

One of the first cases I did after Takiura was a case for a young Māori who started in the Youth Court before being transferred to the District Court.

I recall meeting his whānau one day at the Manukau District Court when the proceedings were still in the Youth jurisdiction but there were concurrent District Court proceedings. They had turned up in force, about 10 people or more in support.  The Court security team had them on their radar, I’m sure.

None of the meeting rooms could hold us, and I wanted to brief everyone about what was happening that day, and ensure a smooth Court appearance.  When under the various pressures that impact us as criminal lawyers, we can default to the basics or what we have seen others model to us.  However, on that day the first thing that came to mind was to call his whānau, led by his Koro together and to deliver a short mihi to them all for turning up in support, and introducing who I was and where I was from. It turned what might have been a potentially stressful situation on another day into one of the better days on the job. It also proved an important starting point in helping the whānau faciliate a whānau hui to generate and collate information to illustrate the strong sense of whanaungatanga to the Court in terms relevant to s 8(i) and s 27 of the Sentencing Act.

Over the last 18 months I have acted for a young Māori man first starting in the Youth Court, and now in the District Court.  He was sentenced in the District Court about 4 months ago.

On the morning of the sentencing, I was told an assault victim had travelled with his wife to Court to read a victim impact statement. Upon reading it, it became apparent the victim was Māori and from memory referred to some aspects of tikanga in his statement.  With the permission of the prosecutor, I introduced myself to him and his wife before Court, and introduced my client's whānau to them who would also be present in Court. I found this took the steam out of the situation when the victim eventually read his statement to the Court, and removed some of the awkward feeling.

I had briefed my client on the victim’s statement and whether he wanted to say something in response. The victim didn’t want blood and had some kind words for my client.  My client wished to respond, but couldn’t do so in such a terrifying forum.  He told me what he would like to say though.  My client’s mother and sister weren’t in a position to respond at the completion of the victim’s statement being read.  I didn’t feel it was right that it simply be left at that, so with the permission of the Judge I turned to mihi in te reo to the victim and his wife on behalf of my client in order to acknowledge what had been said, and bring some balance and closure to that part of the proceedings.

Following that, the case was adjourned for restorative justice to be completed.  Whilst I appreciate doing a mihi to the victim in open Court would happen in rare circumstances, it is another example of being alive to how whakaaro Māori can assist in the role of criminal advocate.

He kai kei aku ringa[11]

On another occasion, I was acting for a young Māori who was caught up alongside his brother in an aggravated assault / aggravated robbery before the District Court. Both he and his Nan spoke Māori.  Ironically, his Nan had spent years working in prisoner rehabilitation.  One day I met with them in the office, delivered a brief mihi before asking them whether they would like a hot drink and something to eat.  His Nan looked at me and said in English, “you know Chris, I have been going to lawyers’ offices for years with clients, and this is the first time a lawyer has offered me and the client a hot drink and food.” I didn’t ask her whether any had delivered a mihi in te reo Māori.

Sometimes, it can be easy to think that as a result of cultural disconnection some of the young Māori we act for have no sense of tikanga.

In 2017, I acted for a young person before the Youth Court on an aggravated robbery. He was close to his 17th birthday by the time he was sentenced and the argument was about whether he should be transferred to the District Court for sentence.

Prior to sentence, I went around to his house in South Auckland to pick him up.  His mum met me at the door and called for him to come out. When he did, he looked a bit worse for wear and really tired.  We jumped in my car and returned to the office.  On the way I asked him, “are you hungry?”, he said “yes”.  So we drove through McDonald’s on the way to the office and I told him to order what he wanted.  He ordered a deluxe combo, big burger, large fries, large drink, and a large sundae.  As we were driving back to the office, I could see he wanted to tuck in, so said “go for it, the smell will kill you otherwise”.  Tuck in he did.  But about 5 minutes before arriving back at the office, he started neatly repacking the kai up and left it on the floor of the car.   It made me wonder, especially after we parked up at the office and he left it in the car.  I asked him as we walked in, “is something wrong with the feed?”, he said quite naturally, “nah I loved it thanks, but I’m saving the other half for my mum.” It floored me. I said, ok “save the rest, but we’ll pick something up for mum on the way home and you guys can have a kai and you can let her know how our meeting went”.

In the youth court sentencing scheme, s 284(1)(b) of the Oranga Tamariki Act requires the Court to take into account, the personal history, social circumstances, and personal characteristics of the young person, so far as those are relevant to the offence, and any order that the court is empowered to make in respect of it. This illustration of manaakitanga and aroha of this young man to his mother formed an important part of his plea to stay in the youth court.

Whakaritea te haumaru[12]

Whilst not technically flagged as part of the waka, karakia is essential before heading off on a voyage or returning from one.

In some Courts I have seen Judges lead a karakia to start the day and end the day, and in some instances arrange through the registrar beforehand for regular participants of the Court to take turns in leading the karakia.

It has been great to be able to contribute as a Māori lawyer and deliver a karakia in those circumstances if called upon.

In an age when mindfulness has become an important tool in a lawyer’s kete, karakia can serve the same purpose, for both lawyers and clients.  It is also a good way to whakawaatea[13] after dealing with particularly stressful or distressing cases.

At the end of last year, I did a drugs case in the High Court. It was stressful due to the high profile nature of the prosecution and the inevitability of a prison sentence even after negotiation and resolution for a client with no previous drug convictions.

My client was Samoan and came from a religious family who supported him at his sentence in great numbers.

At sentencing, despite best efforts, a prison sentence was imposed.

Following the hearing, I met with the family and supporters in a large meeting room.   Before closing up, I said I would like to do a karakia, his family were very appreciative, and once I finished his Aunty who was a minister closed with her own prayer in reply thanking me for my work and seeking blessings for me and my whānau.  Notwithstanding the outcome that remains one of my better work days.

Me mate ururoa[14]

In terms of māia, this can also be applied to the types of legal arguments we run and the language we use to do it.

I’ve found lawyers are a bit like surfers, we’ll get more excited about an argument if we’ve talked it through with others.  Much like when the surfers in a line-up yell “YOU WON’T GO…” to the surfer best positioned to catch the biggest set wave of the day.  When you’re on the other end of that, there is no other option but to go! Me kounga te mahi![15]

So I have found talking through “brave” arguments with others helps.  It also helps looking at waves ridden by others before you, much like the crew of surfers who first rode (maxed out) Waimea Bay, when they said it couldn’t be done. A lot can be gained from seeking out the views and experiences of those such as Moana Jackson, Anette Sykes and others who have shown such leadership on this front.

In 2017, I met a client, he was Māori in his late fifties.  When he walked into the office, you could see there was a lot going on for him, mamae, pōuri, whakamā. We sat and talked.  For the last 10 years he had been a security guard at a mall, but after an incident with a group of youth, who were in an area of the mall they shouldn’t have been and commented on his appearance, he lost it and injured an 11 year old quite badly.  He lost his job as a result.  He had worked all his life, and been the main bread winner. He had a really sad upbringing, his father was a WWII veteran who wasn’t the same man when he came back, but of whom that was all he knew.  He then lost both parents by the time he was 15.  His extended whānau were gang affiliated, but he managed to avoid all of that, and live a constructive life in a long marriage with three adult children who were all successful.  The whakamā he was carrying was palpable.

Quite detailed information about his cultural background and upbringing was included in the sentencing material we filed.  I spoke with Corin about him, who raised with me the whakataukī “waiho mā te whakamā e patu”. Knowing what I knew about him and why he felt such shame, I decided to base my plea in mitigation around that whakataukī. It turned out to be a logical way to structure the plea and cut to the heart of it for my client, a merciful community based sentence followed, but importantly the client and his whānau felt relieved that some of the hurt had been lifted, and that their case was put before the Court with whakaaro Māori at the forefront.

Ko te pae tawhiti whaia kia tata, ko te pae tata whakamaua kia tina[16]

Before closing, I want to leave some thoughts on some possible legal applications of whakaaro Māori in the criminal law:

Section 106 discharge without conviction:

  • What is a direct or indirect consequence?
  • Who need be impacted?
  • What tikanga based consequences arise from entry of a conviction?
  • What language should we be using to frame these questions and arguments, in order to properly convey the thought?
  • How does systematic deprivation, hardship, post-colonial trauma fit into that sentencing discretion?
  • How do Māori achievement rates in certain societal indicators fit in?[17]
  • How might the possibility of breaking an inter-generational cycle of conviction play into weighing the consequence and gravity of the offence?

Section 27 information:

  • What if a whānau member speaks to the body of the Court and whānau want to waiata / haka tautoko so as to reinforce the words of the speaker?
  • What if a whānau would like that aspect of proceedings dealt with on a marae?

Propensity evidence:

  • How might tikanga Māori play a role in defendants offering propensity evidence about themselves pursuant to s 41(1) of the Evidence Act?

I am sure those practicing at the criminal bar have other experiences and ideas that would be great to hear and encourage an ongoing kōrero about this.

Whakakapi | Conclusion

I hope that within this paper there are some thoughts which might stimulate discussion amongst us at the criminal bar, or at least add to existing kōrero, about how we can bring more whakaaro Māori into all aspects of our day to day practice as criminal lawyers. I look forward to that kōrero.

In the interests of also showing a different perspective on the waka model to practice, Corin Merrick has offered to share her waka and thoughts in te reo and English from her perspective and fields of practice.  It is  well worth reading and is included with this paper below.

Tēnā koutou katoa.

Corin Merrick

Tōku waka

Tēnā kia ruku tōtika au ki te rētōtanga o te kaupapa nei.  Kua roa au e huritao nei, e whakarau kakai nei, he aha tēnei mea te rōia Māori?  He aha ngā haepapa a te rōia Māori?  He aha te rerekētanga o te rōia Māori me te rōia?

A kāti, kua tuangahuru ngā Matariki au e karakia ana ki a Hiwa-i-te-rangi kia Māori taku tū i tēnei ao e nōhia nei e tātou.  Me karakia ka tika, inā hoki te Pākehā, Pākehā ake nei, Pākehā tūturu o Te Moana-nui-a-Ture.  Ko te whakapātaritaritanga nui ki a tātou, ko te whakamātāmua i tō tātou Māoritanga.  Ui mai ki a au, he aha tēnei mea te rōia Māori, māku e kī atu, he Māori, ka tahi, he rōia, ka rua.

Ka hoki aku mahara ki ngā kupu a te manu taupua rā, a Justice Williams, nōna e kauwhau mai ana ki a tātou i Waitangi i te tau 2015.  “E tū ki te kei o tō waka kia pākia koe e ngā ngaru o te wā, engari e tere atu ana tō waka ki hea?”.  E hoa mā, anei, e whai ake nei, te waka kua tāraia hei kawe atu i a au ki tua o te paewai o te rangi.

Te Ihu - Kounga

Ko te ihu o te waka te wāhanga e wāwāhi nei i ngā moana pukepuke o te Ture.  Ko Kounga tērā e ārahi ana i a au.  Te mahi a te whakatauki e korerotia ana tēnei mea te whakatutuki i te mahi, ki tōna ikeiketanga.  Whāia te iti kahurangi, whāia te pae tawhiti, inā te mahi he rangatira, arā noa atu ngā kupu a ō tātou mātua tūpuna.  Hei aha ngā kupu whakaohooho a Pukamata, a Paeāhua, a Tīhau, anei kē ngā tohutohu nō te ao Māori tonu.

E puta pai ai te ihu i ngā wai tūātea, i ngā wai tuarangaranga, me upoko pakaru te karawhiu, me kounga ngā mahi.  Nō reira, koutou mā e takoto mai ana i ō koutou hāneanea, e pōhēhē ana he mahi kai paraoa tēnei, matike, maranga.  Kei kīia he māngere, he māikoiko, he toupiore!  Ki te pēnei tō waka, e tama, tukuna kia huripoki.  Kia kaua e wareware i a tātou tō tātou waimarie kua whai kīato i te waka nei.  Engari anō ō tātou uri, e pākia ana e ngā tai aniwhaniwha o te Ture.  Ō tātou tāne Māori, e hoki hoki ana ki Maungawhau, anō nei he marae.  Ō tātou wāhine Māori, te ono tekau orau o te kāhui mauhere.  Ā, tae atu rā ki a tātou tamariki Māori, ngā raukakai e tū tōtika ai te whare a Oranga Tamariki.

Te Haumi – Whanaungatanga

Ko te whanaungatanga e noho pū ana i te haumi o tōku waka.  Kia titiro ake tātou ki ngā momo whanaungatanga e korerohia nei e au, ko te rōia me te kiritaki; te rōia me te rōia; te rōia me te kaiwhakawā; te rōia me te kirikawa.

Kāore au mō te whakamārama i tēnei mea te whanaungatanga.  Engari, e mōhio ana tātou, ko Tautoko, rātou ko Hononga, ko Here ngā kaihoe i te wāhanga nei.

I tēnei tau, rite tonu te rangona i ngā korero takatakahi, whakaparahako, whakaiti i te wahine i te ao ture.  Kei aku rangatira, ko te urupare – ko te whanaungatanga, ko ngā tikanga Māori.  Kia tīkina atu e au ngā korero o te Aho Matua e hāngai pū ana ki te tangata:

He tapu tō te wahine, he tapu anō tō te tāne. Kia kaua tētahi e whakaiti i tētahi. Engari kia whakanui tētahi i tētahi i runga i te mohio mā te mahi ngātahi a te wahine me te tāne e tupu ora ai ngā tamariki me te iwi hoki.

Tāne mā, me mutu tā koutou tō mai i ngā āhuatanga o te Pēhi, ki taku waka Māori.  Waiho i ērā mahi hōhā ki a rātou, heoi ko tātou, tātou Te Hunga Rōia Māori, me whakanui tātou i te wahine, me whakanui tātou i te tāne.  A kāti, ahakoa ko wai, whakanuia.  Rarawe noa iho.

Te Kei – Manaakitanga

Ka tū au ki te kei o tōku waka, ka pākia e ngā ngaru o te wā, e tere tonu ana tōku waka, inā hoki ko Manaakitanga tōku taituara.

Ahakoa te hononga ki te tangata, kiritaki mai, kaiwhakawā mai, me noho te manaakitanga ki te tihi o te whakaaro.  Ka whakaaro ake au ki o tātou tūpuna, ki ngā wā o te pakanga, i reira tonu te manaakitanga.  Tēnā, e hoa mā, whakaarohia āu kiritaki, ka āta mihi koe ki a rātou?  Pehea hoki te kai?  Aro atu ki ngā kupu “he inu wai mōu”, ehara i te pātai.  Ēnei āhuatanga katoa, he Māori.

Waihoki, me matapaki e tātou ngā ture reo, me kī te wetewete reo.  E rua ngā kupu e kaha whakararu ana i te hunga kōrero Māori, ko A tētahi, ko O tētahi.  Me hoki e au ki te whanaungatanga i waenganui i te rōia me tāna kiritaki.  E mea ana koe! He a tēnā, e hoa mā.  Inā hoki, ko te kiritaki e noho ana i raro i te manaakitanga, i te tautetanga o te rōia.  Ko te reo Māori tonu tēnā e tohutohu ana i a tātou.

Kī pohapoha ana taku kete i ngā kōrero mō tēnei mea te manaakitanga.  Heoi, kāore i kō atu, i kō mai i ōku tuākana mō te whakatinana i te manaakitanga.  Me mihi e au ōku iho pūmanawa,  mō koutou i kaha āki, i poipoi, i taunaki i a au.  E manaaki tonu nei i a au.  E kore rawa au e toromi i ngā tai o te whakataetae, i te karekare o ngā tai kawa.  Engari, nā ngā kupu whakatenatena, whakatītina, whakakipakipa i whakapapa pounamu ai te moana.

Nō reira, e Te Hunga Rōia Māori, eke panuku, eke Tangaroa!

Interpretation - my waka

Let me dive straight into the depths of this discussion.  I have been considering for some time, what it means to be a Māori lawyer? What responsibilities do we have as Māori lawyers?  What is the difference between a Māori lawyer and a lawyer?

Well, for 10 Matariki now, I have been praying to Hiwa-i-te-rangi[18] to be Māori in this world that we work in.  It’s only right that I pray, given that the Great Ocean of the Law is as Pākehā as can be.  The greatest challenge before us, is to put our Māoritanga at the forefront.  If you ask me, what is a Māori lawyer, my answer is, a Māori - first, and a lawyer - second.

Te Ihu – Excellence

It is the prow of my canoe that breaks through the choppy seas of the law.  Therefore, it is excellence that guides me in my work.  There is an abundance of proverbs advising us on executing our work, to the highest standard.  Whāia te iti kahurangi, whāia te pae tawhiti, inā te mahi he rangatira, and many more sayings passed down by our ancestors.  Never mind the inspirational quotes from Facebook, Instagram, and Twitter, here is the guidance from our own Māori world.

In order for the prow of the canoe to get through the rough seas, we need to work hard, we need to produce excellent work.  So, for those of us having a kit kat, get up!  You don’t want to be called lazy.  If you’re on this kind of canoe, let it capsize.  Let’s not forget how fortunate we are to have a seat on this canoe.  Unlike our relations who are being smashed by the destructive waves of the law.  Our men, who return to Mt Eden, as if it’s their marae.  Our women, 60% of female inmates.  And our children, the human sacrifices taken to ensure Oranga Tamariki’s house stands upright.

Te Haumi – Relationships

Relationships sit at the haumi, the middle, of my canoe.  Let’s look at the type of relationships I am talking about – lawyer-client relationships; relationships between colleagues; relationships with judges; relationships with experts.

I don’t want to explain what whanaungatanga is.  However, as we know, Support, Connection, and Obligation are the paddlers sitting in this part of the canoe.

This year, we have been saturated by the stories of discrimination against women in the law.  My esteemed leaders, the solution to this behaviour can be found in our own customs, it’s in whanaungatanga.  Let’s look to Te Aho Matua[19] for its take on the importance of people:

Women are sacred.  Men are sacred.  One should not belittle the other.  But they should be honouring each other (honouring gender differences and attributes) in full understanding that it is in the combined and co-operative efforts of men and women that the well-being of children and the community is assured.

So, guys, stop bringing the ways of the coloniser into my canoe.  Leave that to them, but us, Te Hunga Roia Māori o Aotearoa, we will celebrate and honour our women, we will celebrate and honour our men.  Whoever it is, honour them.  It’s as easy as that.

Te Kei – Manaakitanga

I stand by the stern of my canoe, and am hit by the waves of our work, however my canoe keeps moving, because Manaakitanga is there with me.

Whoever it is, whether it is a client, or a judge, manaakitanga should be at the forefront of your thoughts.  I think about our ancestors, during war times, where they still followed the customs of manaakitanga.  My learned friends, turn your minds to your clients, do you mihi to them? What about offering them food? Ponder the words “here is a drink of water for you” – it’s not a question.  These are all Māori ways.

In addition, let’s have a discussion about grammar.  There are two words that cause great confusion amongst many speakers of te reo Māori, one is A, the other is O.  Now, back to the relationship between the lawyer and her client.  You betcha!  That relationship comes under A.  The client is under your manaakitanga, it is your responsibility to “look after” your client.  It is our language that is guiding us here.

My kete is full to the brim with stories about manaakitanga.  However, there is no truer example of manaakitanga than what my sisters embody and have shown me.  I must acknowledge them for encouraging, nurturing, and supporting me.  Who are still caring for me.  I will never drown in these competitive, and sometimes acidic seas.  It is your words of encouragement, of reassurance, of inspiration that make this sea as smooth as a slab of greenstone.

Te Hunga Rōia Māori, journey forward, journey to success.

Notes

[1] Can you see the island? (2015) October Māori Law Review – Hui-a-tau Conference 2015 – Te Hunga Roia Māori o Aotearoa, Justice Joseph Williams.

[2] Solicitor General v Heta [2018] NZHC 2453, 18 September 2018.

[3] Ibid at [27] – [29].

[4] See: Police v Wells A.P 206/86 High Court Auckland, 6 March 1986, per Smellie J.

[5] [2018] NZHC 2453 at [68] where a 30% discount was confirmed on Crown appeal for s 27 factors.

[6] NZLS article, Lawyer ethnicity differs from New Zealand Population, 3 August 2018, G. Adlam.

[7] There are many other parts of the waka which have various functions, and there is value in researching those and adding to your own, with reference to waka practice in your own hapū or iwi if that information is available to you.

[8] An expression of “each to their own”.

[9] The implication being that a LLM might be more worthwhile.

[10] Translated: the winds of greeting or acknowledgement.

[11] This is a whakataukī (proverb) translated as: there is food at the end of my hands – said by a person who uses their basic abilities and resources to create success.

[12] Translated: create, prepare a safe place.

[13] Translated: clear, purge, free.

[14] This is a reference to the well known whakataukī, kaua e mate wheke mate ururoa – don’t die like an octopus die like a hammer head shark.  Meaning, don’t give up, fight till the end.

[15] And do it well.

[16] A whakataukī: seek out distant horizons and cherish those you attain.

[17] Such as those highlighted in Heke Tangata Māori Markets and Cities, Brian Easton for Te Whānau o Waipereira,  Oratia Books, 2018.

[18] Hiwa-i-te-rangi is the youngest of 9 visible stars in the Matariki cluster.  She is often referred to as the wishing star.

[19] Te Aho Matua is the foundation document and driving force for Kura Kaupapa Māori.

Author: Chris Merrick

Chris is a barrister at Mānuka Chambers. He holds degrees in law and arts (history) from the University of Auckland. He was admitted to the bar in 2008. Chris started his career as a Crown Prosecutor in Auckland. Since 2012 he has specialised in criminal defence and youth advocacy. Chris is of Ngātiwai, Ngāti Manaia (ko Te Whakapiko te hapū), Tongan, and New Zealand European descent. He is also a speaker of Te Reo Māori.