John Robinson
hobsonspledge.nz

John Robinson, a career scientist with a PhD from the Massachussetts Institute of Technology who has also written When Two Cultures Meet, The Kingite Rebellion, Unrestrained Slaughter: The Maori Musket Wars 1800-1840, and Hone Heke’s War. He co-wrote One Law or Two Monarchs.

A friend has brought to my attention a recent article, written from a radical Maori perspective, on the legal force of tikanga and the court case on which it is based.  Since I have written a book on tikanga, he suggested that I prepare a response.

The court case on which it is based is to do with a claim for ownership of part of the Bay of Plenty coast, see here, [i]  and the title of my book is Dividing the nation: the return to tikanga. [ii]

This is just one of many recent examples of the increasing division of New Zealand society, governance, law, and much more based on tikanga and matauranga Maori (Maori culture, Maori concepts, knowledge, values and perspectives), where features of pre-contact Maori society have been written into law. 

The extension of racial differentiation is proceeding at a rapid pace, in law as in local government, education and health, and I have added a significant chapter on ‘Ad hoc law’[iii] to the second edition of Dividing the nation: the return to tikanga (2021).  That chapter included reference to the application of tikanga to the Peter Ellis case, with the recognition of mana after death. 

The judgement considered is that of Justice Churchman concerning an application for an order recognising customary marine title and protected customary rights for a part of the Bay of Plenty coast.  Both legal decisions were influenced considerably by the opinions of Justice Joe Williams, the Supreme Court’s first Maori judge.  Williams “described tikanga Maori as Aotearoa’s first law” in a 2013 speech, titled ‘Lex Aotearoa’, which is quoted by Churchman.

What is this tikanga

The meaning today is deliberately confused, with no clarity as to whether traditional Maori ways are implied (which would include inter-tribal warfare, cannibalism, slavery and other primitive customs) or whether it is a modern version, transformed around 1840 by the widespread shift to Christianity, and further cultural development since. 

Further confusion comes from the recent rewriting of history (the revisionist approach) and the invention of new meanings to words. 

The resulting confusion allows Maori authorities to claim that they alone can interpret and explain New Zealand common law, and we are required to sit silently on the side-line and accept whatever they pronounce. The meaning of the law belongs to this minority alone.

I have been deeply concerned by what I have learned from my research.[iv]

  • The vagueness of tikanga and the impossibility of combining it with common law would create a lawyers’ nightmare – or, perhaps, a lawyers’ gravy train.
  • New Zealand has progressed far down a divisive road.  Rewritten history, invented grievance and calls for racial separation – apartheid – are far advanced, destroying the unity of the nation.  Any claim that ‘we are one people’ is a lie.
  • Early tikanga was murderous in practice.  Since the coming of other peoples, tikanga has changed and fragmented.  The current version is various, uncertain, and impossible to define.  … the people are divided in law by race, to co-govern New Zealand in a partnership of two separated social groups, no longer one people.

There was no system of law in pre-contact Maori society, no codification of laws (indeed, Maori were illiterate), no central authority to apply any such system.  Both before and following colonisation, there were many calls from Maori across the country to “give us law”. 

The situation was clearly described by prominent Maori scholar, activist and parliamentarian Sir Apirana Ngata in 1922:

“The Maori did not have any government when the European first came to these islands. There was no unified chiefly authority over man or land, or any one person to decide life or death, one who could be designated a King, a leader, or some other designation. … The Maori did not have authority or a government which could make laws to govern the whole of the Maori Race.”[v]  Decisions were made on the spot by powerful warrior chiefs; might was right – the very opposite to any system of law. 

The judgement considered here is, however, based on a simple, unequivocal assertion of an old Maori system of law, which is to become central to New Zealand law.  There was “an intersection between … two separate legal systems … tikanga Maori … forming the first law … The second law brought over by the British hundreds of years later … the signing of the Treaty of Waitangi acted as the ‘point of contact’ between the first and second laws; the ‘mechanism through which these two systems of law would be formally brought together in some sort of single accommodation’.  The courts have accepted this fact (my emphasis), and have started to engage in an analysis of the relationship between the first and second laws of Aotearoa New Zealand and their impact on the current legal system.”[vi]

There is no comprehensive comparative analysis or consideration of differences, or of the conflicts between these two very different ways of conflict resolution.

There is nothing new in this lengthy (215 pages) decision.  We find rather the now familiar arguments, based largely on previous decisions. 

Bear in mind, the law is a foreign land to many of us. Beliefs in law rely heavily on precedence, not on rational analysis. 

This is very different from the process when an article is submitted to an academic journal. It is sent to referees without identification of the author, to be judged on its content, the logic and reasonableness of the argument.

But not so in law.  Judgement on any points raised is based principally on the authority and reputation, as held by the court, of the source and not by reasoning. 

Once some point of view is taken on board by one court, it can be repeated unchanged without question, until familiarity makes it part of accepted dogma. 

This process of building authority from repetition does not alter the fundamental fact that many of such repeated, and now readily accepted, statements are nonsense. 

In this way a body of law, along with a parallel rewritten account of history has been established, and is being extended. 

This is not a warning of where we might be headed, but a description of where we are now.

Many aspects of traditional Maori culture are noted, without or critical appraisal; they are to be accepted as part of the law of the nation.  The judgement provides a list of core values at the centre of tikanga, as suggested by Joe Williams:

  • whanaungatanga or the source of the rights and obligations of kinship;
  • mana or the source of rights and obligations of leadership;
  • tapu as both a social control on behaviour and evidence of the indivisibility of divine and profane;
  • utu or the obligation to give and the right (and sometimes obligation) to receive constant reciprocity; and
  • kaitiakitanga or the obligation to care for one’s own.”

This is followed by the comment that “Williams J specifically identified whanaungatanga out of these core values as the glue that held the system together.”[vii]

This list raises serious questions.

The social control claimed for tapu, together with the insistence on “indivisibility of divine and profane”, breaks the common understanding of secular government and law, where beliefs in spirituality and religion play no part; it contradicts the principle that we are all equal despite our varied beliefs. It gives permission to iwi to place restrictions on many activities such as access to land and sea (which already occurs). We, the community do not govern our local environment.

The coupled whanaungatanga and kaitiakitanga permit, indeed instruct, priority to members of an extended family.  This, the granting of favours to friends, is corruption, henceforth to be sanctioned in central government, local government and in the civil service.  The insistence that tikanga is a guide to behaviour in the public sphere is an open invitation to nepotism, practically a directive.  

Remember, this is law for the governing of society, collective rules and not guidance for individual behaviour.  The centrality of family, whanau, both present and previous, opens the way to inherited position and rights determined by ancestry.  We cannot be equal when those in power base their judgements in part on extended family links.  Yet this is intended to be a core feature of New Zealand law. 

This is strengthened by the call to respect utu – “the obligation to give and the right (and sometimes obligation) to receive constant reciprocity”.  How far are we to allowed to take action in support of relatives, to fight to remedy perceived wrongs to the clan?  It must not be forgotten that a requirement for revenge was a core feature of traditional utu.

This brings us to a key aspect of traditional Maori conflict resolution, which is noted (without critical comment) in the ruling.  “Customary rights in land or sea were sourced in a number of ways, the most common of which are … take raupatu (victory and battle).”[viii]  That principle of conflict resolution was the one most often acted on, as war parties raided other tribes, to kill and often eat foes, to take prisoners as slaves, to drive peoples from their lands and to finally reduce the country to a state of complete disruption and misery (in the 1820s and 1830s).[ix] 

That feature of tikanga must be firmly rejected before we can start to consider bringing tikanga into social mores.

A number of basic principles for a good life and a successful society are missing from the listed core values – such as common humanity and equality, refusing inherited special rights, clear law, understood by all, so that all know what are rules of our society.  These conflict with many aspects of tikanga; we need to choose which to follow.

Who, then, decides?  Who defines the meaning of it all when there is no clarity?  The judgement is clear: “the proper authorities on tikanga are those who have been tasked or honoured with the matauranga of their tipuna – the knowledge and wisdom passed down to them by their ancestors.”[x]  Maori are to act as independent gatekeepers.

The whole approach to law is to change.  “Nevertheless, there is a clear distinction in conventional Pakeha understandings between the body of the rules of law on the one hand and the underlying values on the other hand.  Tikanga Maori does not draw such a clear distinction.  Tikanga Maori includes the values themselves and does not differentiate between sanction-backed laws and advice concerning non-sanctioned customs.  In tikanga Maori, the real challenge is to understand the values because it is these values which provide the primary guide to behaviour and not necessarily any ‘rules’ which may be derived from them.  Without an understanding of these values, the prescriptions may appear to be contradictory.  Thus, it is considered important to articulate these underlying values first before dealing with the various categories within which tikanga Maori applies.”[xi]

It must be repeated.  The values of traditional Maori society led to widespread killing and a complete collapse before the British were called upon to provide law.  The values of the tikanga of today are totally unclear and conflict with those of civilised society.  Only a fool would accept these prescriptions.

This judgement asks us to accept tikanga as a vital feature of New Zealand law.  A vital part of this tikanga is whanaungatanga and utu.  How will all this be put into operation?  What might be the consequences?  To a grant personhood to the Wanganui River, which is then recognised as an indivisible and living being, seems innocuous, but there is far more implied by the new rules, which may soon seriously affect our lives.

It is not difficult to imagine the potential consequences of the new order. 

Suppose there is an attack on, or a rape, of a family member, cousin or whatever.  A combination of the obligations of whanaungatanga and utu then allow (indeed call for) the formation of a posse of extended family members, to do something about it.  Whoever they identify as perpetrator (no legal investigation) will then be dealt with. 

Thus, reciprocity leads to revenge and taking the law into your own hands.  Would the new dual law recognise those responsibilities and refuse to act against any such vigilantes?  This is seriously weird, yet is what the words mean, if we just take the time to read them carefully.

This is a religion.  We are presented with a set of beliefs that we are asked to accept and adhere to, without questioning, without rational understanding.  For myself, I refuse.

References

[i] Judgment [No. 2] on an application for an order recognising customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011, by Churchman J. on May 7, 2021, in the High Court of New Zealand, Wellington registry, CIV-2011-485-817 [2021] NZHC 1025,   A PDF copy is available at https://www.courtsofnz.govt.nz/assets/cases/2021/2021-NZHC-1025.pdf

[ii] Dividing the nation: the return to tikanga (Tross Publishing, 2019)

[iii] This includes sections on The Peter Ellis case and recognition of mana after death, Some Maori legal reactions, Common law and Implications

[iv] Dividing the nation: the return to tikanga

[v] Ngata A 1922.  The Treaty of Waitangi, an explanation,  First published in 1922, with a translation into English by M R Jones; republished by the Maori Purposes Fund Board with footnotes added.  Available online at http://nzetc.victoria.ac.nz/tm/scholarly/tei-NgaTrea-t1-g1-t1.html

[vi] Churchman judgement [69]

[vii] Churchman judgement [282 and 283]

[viii] Churchman judgement [292]

[ix] Robinson J 2020.  Unrestrained slaughter, the Maori musket wars 1800-1840.  Tross Publishing

[x] Churchman judgement [272]

[xi] Churchman judgement [286]

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Tikanga in Law: What Does It Mean?
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