Mahuru 2020 September – Contents

Pūnaha whakawā – criminal justice

Sentencing – systemic deprivation discounts – progress but not perfect - Oliver Fredrickson

Indigenous peoples and COVID-19 – online seminars

Māmari Stephens chairs a panel discussion with presentations by Professor Margaret Mutu, Julia Whaipooti, and health academic Dr Rhys Jones. They discuss Māori experience of law and justice in Aotearoa New Zealand through the COVID-19 pandemic to date

Dr Carwyn Jones chairs a discussion with presentations by Courtney Skye, John Borrows, Jess Housty, and Jeff Corntassel on Indigenous peoples and COVID-19: issues of law and justice in Canada

Dr Claire Charters chairs a discussion with presentations by Aliza Organick, Kelsey Leonard, and Miriam Jorgensen on Indigenous peoples and COVID-19: issues of law and justice in the U.S.A.

Legal education in Aotearoa New Zealand

Educating for a bijural Aotearoa New Zealand legal system - the aspirations of Māori academics - Professor Jacinta Ruru

Te Kōti Mana Nui - Supreme Court

Pūnaha whakawā – criminal justice - sentencing - relevance of whakamā - leave to appeal refused - Henare v R [2020] NZSC 96 - Craig Linkhorn

Te Kōti Pīra - Court of Appeal

Pūnaha whakawā - criminal justice - sentencing - relevance of whakamā - Henare v R [2020] NZCA 188 - Craig Linkhorn

Te Kōti Matua - High Court

Takutai moana - strike out - Re Maanu Paul [2020] NZHC 2039 - Zoe Rose-Curnow

Takutai moana - strike out - Re Dargaville [2020] NZHC 2028 - Zoe Rose-Curnow

Takutai moana - partial strike out - Re Ngāti Pāhauwera [2020] NZHC 1139 - Zoe Rose-Curnow

Takutai moana - procedure - preliminary hearing declined - Re Whakatōhea [2020] NZHC 1549 - Zoe Rose-Curnow

Takutai moana – procedure - participation of Ngāti Ruatakenga - Re Whakatōhea/Ruatakenga [2020] NZHC 1905 - Zoe Rose-Curnow

Takutai moana - procedure - former Attorney-General as counsel - Re Ngāti Whakaue ki Maketū Hapū [2019] NZHC 2360 - Zoe Rose-Curnow

Takutai moana - procedure - test case - referral of tikanga Māori issues - Re Collier [2019] NZHC 2096 - Zoe Rose-Curnow

Te Kōti Pīra Māori – Māori Appellate Court

2020 Māori Appellate Court judgments - index

Te Kōti Whenua Māori – Māori Land Court

2020 Māori Land Court judgments - index

Sir Edward Taihakurei Durie student essay competition 2020

Entries are open for the 2020 Sir Edward Taihakurei Durie student essay competition sponsored by the Māori Law Review. For more information and details on how the competition operates go here. Entries will close at 5 p.m. on Friday 25 Mahuru (September) 2020.


Pūnaha whakawā – criminal justice – sentencing – relevance of whakamā – leave to appeal refused – Henare

Henare v R

[2020] NZSC 96

16 September 2020

Leave to appeal a sentence of imprisonment was refused. The proposed issue on appeal was relevant to sentencing but did not arise on the facts.

Download Henare v R (93 KB PDF).

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Pūnaha whakawā – criminal justice – sentencing – relevance of whakamā – Henare

Henare v R

Court of Appeal [2020] NZCA 188

28 May 2020

The Court of Appeal dismissed Mr Henare's sentence appeal imposed after he pleaded guilty to charges of theft by a person in a special relationship and a charge of perverting the course of justice. Among the issues argued on appeal was whether the sentencing judge wrongly declined to reduce the sentence imposed because of the whakamā experienced by Mr Henare.

Download Henare v R (429 KB PDF).

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Takutai moana – procedure – participation of Ngāti Ruatakenga – Edwards

Re Whakatōhea/Ruatakenga

High Court [2020] NZHC 1905

31 July 2020

The applicant in the priority application brought on behalf of Whakatōhea opposed Ngāti Ruatakenga claims for recognition being advanced as part of the proceeding brought by the Whakatōhea Māori Trust Board, with Ngāti Rua participating in an upcoming hearing of the applications as an interested party. This opposition was not successful with the Court ruling that the proposed approach to representation for the Ngāti Rua interests represented by Ms Hata was allowed under the legislation.

Download Re Whakatōhea/Ruatakenga (131 KB PDF). read more

Takutai moana – procedure – preliminary hearing declined – Edwards

Re Whakatōhea

High Court [2020] NZHC 1549

2 July 2020

The applicants applied for directions from the Court and a preliminary hearing on whether Te Ūpokorehe is a separate iwi or a hapū of Te Whakatōhea iwi. The Court declined the application on the basis that it would delay the substantive proceedings and would not resolve the issue of whether Te Ūpokorehe are entitled to advance a claim under the Marine and Coastal Area (Takutai Moana) Act 2011.

Download Re Whakatōhea (169 KB PDF). read more

Takutai moana – strike out – Paul

Re Maanu Paul 

High Court [2020] NZHC 2039

12 August 2020

The Court struck out Mr Maanu Paul’s application under the Marine and Coastal Area (Takutai Moana) Act 2011 in its entirety. The Court found that the application was filed for an improper purpose and was an abuse of the process of the Court, it did not comply with the mandatory requirements of the Act, and if the application was allowed to proceed it would cause prejudice and delay to other applicants.

Download Re Maanu Paul (234 KB PDF). read more

Takutai moana – strike out – Dargaville

Re Dargaville

High Court [2020] NZHC 2028

11 August 2020

The Court struck out Mr Dargaville’s application under the Marine and Coastal Area (Takutai Moana) Act 2011. The application was filed for an improper purpose, did not comply with mandatory requirements, and the amended application amounted to a fresh pleading.

Download Re Dargaville (205 KB PDF).  read more

Takutai moana – procedure – test case – referral of tikanga Māori issues – Re Collier

Re Collier & Ors 

High Court [2019] NZHC 2096

23 August 2019

The High Court dismissed an application for certain tikanga Māori issues to be referred to the Māori Appellate Court and for this case to be treated as a test case.

Download Re Collier & Ors (318 KB PDF).  read more

Takutai moana – partial strike out – Ngāti Pāhauwera

Re Ngāti Pāhauwera

High Court [2020] NZHC 1139

27 May 2020

Part of the Ngāti Pāhauwera application for recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011 was struck out because it purported to enlarge the claim area beyond the original application out of time.

Download Re Ngāti Pāhauwera (298 KB PDF).
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Takutai moana – procedure – former A-G as counsel – Re Ngāti Whakaue ki Maketū Hapū

Re Ngāti Whakaue ki Maketū Hapū

High Court [2019] NZHC 2360

18 September 2019

An interested party successfully applied to participate in a preliminary hearing about the role of the Attorney-General in takutai moana cases and to be represented by the former Attorney-General.

Download Re Ngāti Whakaue ki Maketū Hapū (379 KB PDF).  read more

Pūnaha whakawā – criminal justice – sentencing – systemic deprivation discounts – progress but not perfect

Systemic deprivation discounts and section 27 Reports: progress but not perfect

Oliver Fredrickson*

In Zhang v R, the Court of Appeal confirmed that “social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender.” This aligns with an emerging trend among sentencing judges to award discounts to reflect “systemic deprivation”. Section 27 of the Sentencing Act 2002 has become a vehicle for much of this change. After years of neglect, s 27 is finally being utilised to bring vital information about defendants’ personal, family, whānau, community, and cultural background. Although this is a welcome development, the manner in which sentencing courts are applying this information and awarding discounts to reflect systemic deprivation has been inconsistent in two respects and this is troubling. First, although it is clear that a “causal nexus” is necessary, the extent to which judges are willing to critically engage with a s 27 report and draw available inferences has not been consistent. Second, it remains unclear whether a sentencing discount to recognise systemic deprivation remains available in particularly serious cases. As a result, sentencing judges have adopted both approaches, with the unfortunate result of having comparable offenders receiving different sentencing discounts.
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