Sir Edward Taihakurei Durie student essay competition 2020

Interrogating Ellis v The Queen: Tikanga Māori in the common law of Aotearoa New Zealand

Elliott Harris

Foreword by Carwyn Jones, Māori Law Review co-editor

The Māori Law Review is very pleased to publish the winning essay from the 2020 Sir Edward Taihakurei Durie Student Essay Competition.

This essay competition, sponsored by the Māori Law Review, has been held annually since 2012. The competition asks students to write about the most important legal development affecting Māori from the preceding year and is judged by a panel of the Māori Law Review’s consulting editors.

The winner of the 2020 competition is Elliott Harris. Elliott’s winning essay is entitled ‘Interrogating Ellis v The Queen: Tikanga Māori in the common law of Aotearoa New Zealand’.

Elliott is a student in his final year at Te Herenga Waka – Victoria University of Wellington, completing an LLB/BA with a major in International Relations and Political Science, and a minor in Classics.

His essay addresses the role of tikanga Māori in relation to the question of whether the Supreme Court would allow Peter Ellis’ appeal to continue, despite Mr Ellis’ death in 2019. This essay specifically considers whether the state legal system’s engagement with tikanga in this case is consistent with Te Tiriti o Waitangi. It is notable that the Supreme Court has not yet released its substantive decision in Ellis v The Queen. The Court has determined that the appeal will be permitted to continue but reasons for that decision have not yet been provided as they will be set out in the Court’s judgment on the substantive appeal. However, counsel for the appellant, the Crown, and for the intervener (Te Hunga Rōia Māori o Aotearoa) all accepted that tikanga is a source of law that can inform the state legal system and is relevant to this case. It is significant that, even with no decision on the substantive appeal and the reasoning on the issue of continuance yet to be provided, the Supreme Court’s interaction with tikanga in this case could be the subject of an essay addressing ‘the most important legal development affecting Māori’ over the course of the last year. This speaks volumes about the potential impact that the Supreme Court’s decision may have on the recognition of tikanga Māori within the state legal system.

Introduction

In September 2020, the Supreme Court released their decision on the continuance of Peter Ellis’ appeal, reserving their reasons. Notably, the appeal is to continue, following submissions on how a tikanga Māori approach might displace the common law position that a right of appeal ends with the death of the appellant. This decision is the most significant legal development affecting Māori in the past year, given that it may potentially elevate the status of tikanga Māori within the common law. This essay considers that decision. It argues that while it is significant, having tikanga Māori as a relevant consideration for the development of the “fabric of law”, is unlikely to give effect to tino rangatiratanga. The promise contained in Te Tiriti o Waitangi (Te Tiriti) allows for tikanga Māori to exist as law, as of right. However, the submissions and hearing process in Ellis v The Queen [2020] NZSC Trans 19 (Ellis) appear to promulgate the orthodox requirement that tikanga be recognisable by the subordinating methods of the common law. This raises age-old questions as to the feasibility of meaningful self-determination in the absence of constitutional reform, while Te Tiriti itself continues to be perceived as non-justiciable.

The scope of this essay is limited to the degree to which the Supreme Court’s interaction with tikanga Māori is congruent with Te Tiriti. It firstly details a Te Tiriti lens, which is then used to evaluate the tikanga hearing and submissions in Ellis. Secondly, it briefly charts the relationship between tikanga Māori and the state legal system through time. Finally, it directly assesses Ellis, concluding that while tikanga Māori should inform the development of the state legal system, the eye of the needle is likely to fray tikanga Māori as it binds it to a larger corrosive fabric. Status as a “thread” of the common law is a far cry from tino rangatiratanga.

Te Tiriti o Waitangi and tikanga Māori in the state legal system

Te Tiriti

Article Two of Te Tiriti promises Māori the continued ability to exercise tino rangatiratanga, despite the granting of kāwanatanga to the Crown.[1] The ongoing exercise of tino rangatiratanga as understood by the rangatira present in 1840 would have been in accordance with tikanga Māori and the independence declared in He Whakaputanga.[2] Sir Mason Durie’s description of self-determination is a helpful parallel to tino rangatiratanga, capturing a “sense of Māori ownership and active control over the future…less dependent on the narrow constructs of colonial assumptions”.[3] The promise of separate and equal spheres of authority between Māori and the Crown is inherent in Te Tiriti, necessitating the recognition of tikanga Māori as a source of a developing state law, and its authority as a legal system itself.[4] The often ignored Article Four likewise anticipates the continuation of tikanga.

As a result, this essay considers that the recognition of tikanga Māori as a separate and co-existing source and system of law in Aotearoa New Zealand is an essential facet of honoring Te Tiriti. This is particularly so in the manifestation of tino rangatiratanga.[5] Te Tiriti derives authority from the values of tikanga Māori, envisioning a partnership between the Crown and Māori.[6] As such, Te Tiriti recognises tikanga Māori as a separate and authoritative legal system. A meaningful implementation of Te Tiriti necessitates the operation of tikanga.

Tikanga Māori and the state legal system through time

Ani Mikaere argues that the position of tikanga Māori in Aotearoa New Zealand’s state legal system is directly allied to perceptions of Te Tiriti.[7] The recognition of tikanga by the common law of Aotearoa New Zealand has largely mirrored the prevailing tiriti discourse.[8] Where Te Tiriti was disregarded, tikanga consequently was considered a system of loosely associated cultural norms without legal significance. The effect of considering Te Tiriti a “simple nullity”, was to view tikanga as non-legal.[9] Initially, it was almost completely disregarded within the state legal system.[10] Where it was engaged with, it was misunderstood and distorted by Pākehā.[11]

In conjunction with the increase in perceived importance of Te Tiriti in the state legal system, tikanga concepts and values have found their way into state law. The development of the “Third Law” of Aotearoa New Zealand has been a process by which the inclusion of tikanga in the state legal system has been directed to its perpetuation.[12] In this respect the common law has lagged behind Parliament in the use of tikanga to develop the law, elevating its status in piecemeal fashion.[13] However, the courts have been actively engaged in defining the scope of legislative references to tikanga and the principles of Te Tiriti.[14]

The inclusion of tikanga Māori in the state legal system has been dogged by controversy. Its position in the state legal system has typically been trammeled by assumptions of Crown sovereignty, even in episodes of conflict considered ultimately successful by Māori.[15] For example, in cases relating to Māori customary title, Māori ownership has been recognised in Aotearoa New Zealand by the common law doctrine of aboriginal title, which originates in early European conceptions of international law.[16] Although the common law protects Māori customary title to land, it does so in a way that “reverses time’s linear order”, by predicating the existence of customary title on recognition by the Crown.[17] Borrows questions an analysis that sees the radical title of the Crown as the source of aboriginal land rights.[18]  Mikaere echoes these assertions, stating “aboriginal rights are buried beneath the notion of crown sovereignty and as such represent the antithesis of tino rangatiratanga”.[19] Even where the Crown supposedly acts in the best interests of Māori, the legal methods that it uses to do so reinforce a broader assumption of Crown sovereignty that fails to be interrogated.

Similarly, the leading case on the recognition of tikanga Māori within the common law, Takamore v Clarke [2012] NZSC 116 (Takamore), left the law in a confusing state. The majority failed to outline how tikanga would be generally recognised as part of the common law.[20] The Court considered there was already a common law requirement that an executor would take into account “different cultural, religious and spiritual practices”.[21] However, they did not create a schema in which Māori interests could feasibly be determinative.

While ostensibly more open to the possibility of Māori interests gaining preference, Elias CJ’s dissent was comparatively opaque. She stated in respect of tikanga Māori that “[v]alues and cultural precepts important in New Zealand society must be weighed in the common law method…according to their materiality”.[22] This, in conjunction with her view that “Maori custom according to tikanga is therefore part of the values of the New Zealand common law,”[23] suggests that tikanga is potentially a relevant source from which the courts are to develop the common law.

Although modern jurisprudence is attempting to create coherent frameworks from untidy historical circumstances, it continues to make decisions with the secondary consequence that the powers of state institutions are reinforced. There is a pervading assumption of Crown sovereignty that is not adequately interrogated.[24] Tikanga Māori values being “mandatory relevant considerations” has not always created circumstances in which Māori interests can prevail.[25] This essay’s central thesis is that like the failures of statutory incorporation, the use of tikanga Māori as a source of New Zealand’s common law is inconsistent with indigenous self-determination. If tikanga Māori can only have legal effect when recognised by the common law rather than in its own right, then the foundations of our legal system are still characterized by Crown dominance.[26]

Ellis v The Queen

This section charts how the Supreme Court has picked up the question left open in Takamore – how is tikanga Māori to be recognised by the common law? It firstly describes the context of Ellis and the nature of submissions heard in the Supreme Court. It concludes that (in the absence of their reasons) the Supreme Court appears to be trapped in a self-perpetuating project of legal assimilation.

Context

Peter Ellis was found guilty of child sex offences in 1993 and served seven years of a 10-year prison sentence.[27] He consistently attested his innocence. At the time of his death in September 2019, Ellis had recently been granted leave to appeal to the Supreme Court.[28] Following questioning from Williams and Glazebrook JJ during initial submissions on whether the appeal would continue after Ellis’ death, the Supreme Court adjourned the case to allow both sides to prepare arguments on how tikanga Māori might affect that issue.[29] Te Hunga Roia Māori o Aotearoa (THRMoA) joined the case as an intervener, to provide submissions on tikanga.[30]

Tikanga submissions

In June 2020, Natalie Coates made submissions for Mr Ellis on tikanga. Her submission was that tikanga can and should inform the development of the state legal system in Aotearoa.[31] Using the metaphor of the whāriki (mat), she stated that “tikanga Māori is also a thread that you can draw from when adding to and thinking about the development of law in a uniquely New Zealand Aotearoa context”.[32] Coates’ submission was amplified by Horiana Irwin-Easthope and Matanuku Mahuika for THRMoA, who similarly advocated that “tikanga principles should embed and influence the general development of applicable legal principle in Aotearoa”.[33] Notably, both the Crown and the appellant agreed that tikanga was a source of law for the state legal system, the Solicitor-General commenting that this was “pretty unexceptional”.[34] This acceptance of tikanga as a source of law perhaps reduced opportunities for an airing of the risks that arise when tikanga and the common law interact.

Analysis

Having tikanga Māori inform the development of the common law carries the risk of abrogating the influence of indigenous bodies of knowledge in how that law is developed.[35] Decisions from our highest court communicate important messages about the broader nature of our legal reality, such as where power lies, what is considered law, and whose rights may be determined. Predicating the legal effect of tikanga Māori on common law recognition promotes a legal hierarchy in which the state legal system continues to dominate. This is a legal reality that is is colonial and ahistorical.[36]

Tino rangatiratanga does not conceive of the state determining how tikanga develops, as the state’s authority does not derive from Te Ao Māori. Where divorced from indigenous authority, tikanga may be interpreted incorrectly or frozen in ways that do not align with the system itself.[37] Having common law judges as kaitiaki of tikanga Māori is contrary to Te Tiriti and is likely to result in the unraveling of Māori law. These risks are familiar to New Zealand. As noted above, their fruits have been well documented.

Issues are likely to beguile an approach that sees tikanga Māori as part of the “values” of the common law. Such an approach sits in stark contrast to Wi Parata but does not create any new avenues for tino rangatiratanga. Tikanga remains an informal source of law, in a fragile form of legal pluralism.[38] The field of inquiry contains a built-in restriction,[39] that the courts cannot “fracture the skeleton of principle which gives the body of our law its shape and internal consistency”.[40] Change will lead only “to reforms that are mere modifications to the pre-existing structures of domination”.[41] Overly optimistic takes on the decision in Ellis are likely to be unfounded. There are limitations on the recognition of tikanga in the courts.[42]

Mikaere posits that any recognition of tikanga by the common law would be a product of Crown sovereignty, situating kāwanatanga over tino rangatiratanga.[43] The aspirations of indigenous self-determination cannot be realised merely by the state selectively adopting, recognizing or giving effect to acceptable aspects of indigenous law.[44] The Supreme Court basing their decision in favor of continuance on tikanga in Ellis is unlikely to promote indigenous self-determination. It is more likely to create authority that parties to a dispute may use tikanga to support their desired outcome, and that it is a relevant consideration among others where the common law is otherwise silent. The recognition of tikanga Māori as a legal tradition relevant to the state legal system undoubtedly enhances New Zealand’s democratic character and has benefits for the rule of law.[45] Ellis is the most significant legal development affecting Māori in the past year. However, it is not the creation of the equal spheres of authority envisioned by Te Tiriti, nor does it unshackle Māori interests from the tyranny of the majority.

The nature of submissions heard, and questions from the Supreme Court bench suggest the risks noted above were not adequately aired in the hearing process. It is unclear as yet whether there is a practical distinction between, “tikanga Māori as a relevant consideration where it is custom recognisable by the common law”, and “tikanga Māori as part of the values of the common law”. While the latter approach of Elias CJ in Takamore may give greater effect to an image of partnership in the weaving of the law of Aotearoa New Zealand, the state legal system is still picking which threads to pull through the eye of the needle. The former approach is the orthodox position which led to problematic determinations in the High Court and Court of Appeal in Takamore, that Tūhoe burial tikanga was unrecognisable at common law due to lack of reasonableness or certainty.[46] Neither approach is “genuinely non-hierarchical”.[47]

While Williams J and Winkelmann CJ have both made comments as to the risks of the incorporation of tikanga Māori into the New Zealand common law, their concerns were related primarily to the judiciary taking incorrect interpretations of tikanga.[48] They did not explicitly turn their attention to the potential that having common law judges rule on tikanga Māori further reinforces the colonial legal hierarchy. The mere fact that tikanga has existed “mai rā anō” does not mean that it is impervious to misinterpretation, even where mechanisms to safeguard its integrity exist, if power is still ultimately vested in the state. As asserted by Carwyn Jones:[49]

…interpreting and applying established legal rules in light of current legal principles and models of justice is quite different to identifying values demonstrated by ancestors and determining the best way to give expression to those values.

The two-day wānanga held to determine the parties’ Statement of Tikanga, which was then presented to the Court is undeniably a mechanism to ensure that tikanga itself retains integrity.[50] However, the Court appeared to treat it as akin to a statement by any expert witness in an adversarial appeal. Specifically, some of the comments made by Glazebrook J illustrate that the Court considers itself free to place what emphasis it wishes on Māori legal authority.[51] This dialogue does not inspire confidence in the degree to which the Supreme Court considers its duty to develop the law as involving a requirement of partnership. A common law colonial fragility lurks beneath questions relating to the adjudicatory nature of the Statement of Tikanga. The hierarchy of the sources of law in Aotearoa New Zealand appears resolute.[52]

Conclusion

This essay argues that the question left open by Takamore has gone on unresolved in Ellis. The decision is unlikely to increase the likelihood of meaningful self-determination for Māori but will instead reinforce that the values of Māori law are relevant in decisions which develop the common law. While this essay was written before the Court’s reasons for judgment were given, this is undoubtedly the most significant legal development affecting Māori in the past year. Ellis may eventually give fruit to circumstances in which Māori interests can be determinative. However, it is also likely to increase the capacity of the state legal system to sporadically engage in the selective adoption of concepts of tikanga Māori to suit its purposes. The inclusion of tikanga as a relevant source for the development of our common law is a helpful step, but Ellis implies that it will remain subordinate. This sits uneasily with the promises and principles of Te Tiriti.

Notes

[1] Waitangi Tribunal He Whakaputanga me te Tiriti: The Declaration and the Treaty (Wai 1040, 2014) at 10.4.4.

[2] Ani Mikaere “Cultural Invasion Continued: The Ongoing Colonization of Tikanga Māori” (2005) 8 Yearbook of New Zealand Jurisprudence 134 at 142.

[3] Mason Durie “Tino Rangatiratanga” in Michael Belgrave, Merata Kawharu, David V. Williams (ed) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, South Melbourne, 2005) 3 at 5.

[4] Waitangi Tribunal, above n1, at 10.4.4.

[5] Carwyn Jones New Treaty, new tradition: reconciling New Zealand and Māori law (UBC Press, Wellington, 2016) at 56.

[6] Jones, above n 5 at 42.

[7] Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in Michael Belgrave, Merata Kawharu, David V. Williams (ed) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, South Melbourne, 2005) 330 at 330.

[8] Mikaere, above n 7 at 338.

[9] Mikaere, above n 7 at 336.

[10] John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” (2008) 12 Journal of Pacific Law 56 at 58.

[11] Mikaere, above n 2, at 146.

[12] Joseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" (2013) 21 Waikato Law Review 1 at 12.

[13] Williams, above n 12, at 11.

[14] See New Zealand Maori Council v Attorney General [1987] 1 NZLR 641; Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179; New Zealand Maori Council v Attorney General [2013] 3 NZLR 31; Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122; Ngāti Whātua Ōrākei Trust v Attorney General [2019] 1 NZLR 116.

[15] Ani Mikaere “Tikanga as the First Law of Aotearoa” (2007) 10 Yearbook of New Zealand Jurisprudence 24 at 27.

[16] David Williams “Unique Treaty-based relationships remain elusive” in Michael Belgrave, Merata Kawharu, David V. Williams (ed) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, South Melbourne ,2005) 366 at 381.

[17] John Borrows “Origin stories and the law: Treaty metaphysics in Canada and New Zealand” in Mark Hickford and Carwyn Jones (ed) Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi (Taylor and Francis Group, ebook ed, 2018) 41 at 42.

[18] David V. Williams “Originalism and the constitutional canon of Aotearoa New Zealand” in in Mark Hickford and Carwyn Jones (ed) Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi (Taylor and Francis Group, ebook ed, 2018) 71 at 77.

[19] Mikaere, above n 15, at 27.

[20] Emma Marguerite Gattey “Do New Zealand Courts Regard Tikanga Māori as a Source of Law Independent of Statutory Incorporation? Or is Anglo-inspired Common Law Still ‘the sole arbiter’ of Justice in New Zealand?” (LLB (Hons) Dissertation, University of Otago, 2013) at 45.

[21] At [152].

[22] At [94].

[23] At [94].

[24] John Borrows “Origin stories and the law: Treaty metaphysics in Canada and New Zealand” in Mark Hickford and Carwyn Jones (ed) Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi (Taylor and Francis Group, ebook ed, 2018) 41 at 41 and 56.

[25] Dawson, above n 10, at 57.

[26] Borrows, above n 24, at 41.

[27] Martin van Beynen “Christchurch Civic Creche accused Peter Ellis dies while appealing conviction” (4 September 2019) Stuff NZ <https://www.stuff.co.nz/national/115536931/convicted-civic-creche-sex-abuser-peter-ellis-dies-while-appealing-convicted>.

[28] “Peter Ellis asks Supreme Court to hear is appeal over Civic Creche convictions” (24 July 2019) <https://www.stuff.co.nz/national/crime/114369189/peter-ellis-asks-supreme-court-to-hear-his-appeal-over-civic-creche-convictions>.

[29] Joel MacManus “Peter Ellis appeal derailed by legal curveball on possible tikanga Māori approach” (15 November 2019) Stuff NZ <https://www.stuff.co.nz/national/117435500/peter-ellis-appeal-derailed-by-legal-curveball-on-possible-tikanga-mori-approach>.

[30] Kahui Legal “The interweaving of tikanga within the common law” (25 June 2020) Kahui Legal <https://www.kahuilegal.co.nz/the-interweaving-of-tikanga-within-the-common-law/>.

[31] Peter Hugh McGregor Ellis v The Queen [2020] NZSC Trans 19 at 5.

[32] Ellis v The Queen, above n 31, at 6.

[33] Ellis v The Queen, above n 31, at 53.

[34] Ellis v The Queen, above n 31, at 33.

[35] John Borrows Canada’s Indigenous Constitution (University of Toronto Press, Toronto, 2010) at 140.

[36] Borrows, above n 24, at 56.

[37] Borrows above n 35, at 148.

[38] Jones, above n 5 at 44.

[39] Borrows, above n 24, at 56.

[40] Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 at 29.

[41] Taiaiake Alfred Wasése: Indigenous Pathways of Action and Freedom (University of Toronto Press, Toronto, 2005) at 180.

[42] Jones, above n 5 at 78.

[43] Mikaere, above n 15, at 36.

[44] Jones, above n 5 at 45.

[45] Borrows above n 35, at 156.

[46] Natalie Coates “What does Takamore mean for tikanga? – Takamore v Clarke [2012] NZSC 116” (18 December 2012) Māori Law Review <https://maorilawreview.co.nz/2013/02/what-does-takamore-mean-for-tikanga-takamore-v-clarke-2012-nzsc-116/>.

[47] Jones, above n 5 at 46.

[48] Ellis v The Queen, above n 31, at 16-18.

[49] Carwyn Jones “A Māori Constitutional Tradition” (2014) 12 NZJPIL 187 at 193.

[50] Ellis v The Queen, above n 31, at 17.

[51] Ellis v The Queen, above n 31, at 25.

[52] Gattey, above n 20, at 55.

Author: Elliott Harris

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