Gary Judd KC's excellent essay on whether tikanga is law, considers in some detail the comments of the Supreme Court in the Ellis case.
The essay, the first in a series, concerns the question of whether the Supreme Court stepped outside its constitutional role by "making law" rather than simply applying and interpreting the law.
He commences with a summary:
In the Ellis case [1], a majority of the New Zealand Supreme Court stated that tikanga was “the first law” of New Zealand. It is clear from the judgments of the majority that, if the Supreme Court’s stance is confirmed in a case where such pronouncements are necessary for the judgment, tikanga will apply generally within the common law of New Zealand
He explains how the issue of tikanga came to be considered in the Supreme Court when in fact it was not argued in the lower courts, by referring to the judgment of Glazebrook J:
[33] This Court began hearing submissions on whether the appeal should proceed despite Mr Ellis’ death on 14 November 2019. At that hearing, the Court raised the issue of the relevance of tikanga to the question of continuance. The hearing was therefore adjourned to allow counsel to prepare further submissions on this issue.
[34] By way of minute dated 15 November 2019, the Court directed that submissions cover:
(a) whether tikanga might be relevant to any aspect of the Court's decision on whether the appeal should continue;
(b) if so, which aspects of tikanga; and
(c) assuming tikanga is relevant, how tikanga should be taken into account.
Note that "the Court raised the issue of the relevance of tikanga".
The essay argues that all of those involved with this procedure - the appellant, the Crown, Maori lawyers and the Maori Law Society - were all on one side and had nothing to do with the parties to the appeal:
No one was there to challenge the prevailing views, contrary to what normally happens in an adversary system of justice. In this very important matter, there was no contradictor, no one to speak against, oppose or deny – no one to ensure there was a real contest between conflicting ideas and interests, no one to represent the wider public interest.
Anyone who has made an appeal to the Supreme Court will know how difficult it is to obtain the Court's approval for the appeal to proceed. There have to be important issues of law and only the issues identified in advance by the Court can be argued in the appeal. The Ellis case procedure appears to be a bizarre departure from the process set out in the Supreme Court Rules.
The essay argues that the the Court purported to change the law when it stated:
[21] The Court (by majority of Winkelmann CJ, Glazebrook and Williams JJ) holds that the colonial tests for incorporation of tikanga in the common law should no longer apply. Rather the relationship between tikanga and the common law will evolve contextually and as required on a case by case basis.
Perhaps the biggest concern is the Court's declaration as to the significance of tikanga:
[22] The majority judges accept that tikanga was the first law of Aotearoa/New Zealand and that it continues to shape and regulate the lives of Māori. In light of this, the courts must not exceed their function when engaging with tikanga. Care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.
The essay challenges all of these statements. The first part of the first sentence makes law, and the second part about it regulating the lives of Maori - "is a bald statement, this is a preconceived and over-simplified claim. It suggests, without evidence other than the Statement of Tikanga, that all Māori cleave to tikanga as a shaper and regulator of their lives".
Gary Judd also sees a warning from the Court in the last two sentences of [22] and that there is "grave danger" for those who claim incorrectly that tikanga is not a system of law and custom and that "those who participated in the misguided exercise may come to regret it".
Not only is the Court making law unconstitutionally, it appears to be warning that it will not tolerate any challenge to its views within the legal profession or in the courts.
There follows a dissertation on what constitutes "law" and the nature of tikanga, with the conclusion that tikanga is a system of beliefs. It is not law. However tikanga has its place:
Let it be clear: as New Zealand’s Bill of Rights affirms, everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference. Everyone also has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinion of any kind in any form. Further, every person has the right to manifest that person’s religion or belief in worship, observance, practice, teaching, either individually or in community with others, and either in public or in private.
Therefore, anyone who subscribes to tikanga beliefs, and wishes to manifest them, is perfectly entitled to do so, without interference.
However, there is a limit:
Only when beliefs produce actions harmful to others do questions arise whether the law should intervene. The intervention, which then may occur, is not because of the beliefs but because of the harmful actions.
Just as there should be no interference with the adoption and holding of tikanga beliefs, so also there should be no interference with others’ freedom of thought, conscience, religion, and belief. This latter interference may occur when people in positions of power seek to impose tikanga beliefs on those who do not hold them.
Part 2 of his essay Tikanga is not law is subtitled Diving into the unknowable: a misguided experiment.
https://garyjuddkc.substack.com/p/tikanga-is-not-law-2
Gary Judd KC continues to cast a critical eye over the Supreme Court judgments in the Ellis case.
He points out that O’Regan and Arnold JJ’s joint judgment considered the Ellis case not to be a suitable case for pronouncements of a general nature because the Supreme Court did not have the benefit of lower court judgments and because tikanga came up for consideration for the first time in the Supreme Court. It came before the Court...
...in an uncontested environment and in circumstances where the Court has not had to address a number of issues of both legal and constitutional significance.
He argues that it is not the Court’s business to make general pronouncements. The Courts’ job is to decide individual cases as they come forward for decision. He refers to the statement by former Australian Chief Justice, Sir Anthony Mason.
The fact is that courts do not initiate cases; they exercise jurisdiction only when called upon to do so by a litigant and then they are required to adjudicate upon the litigant’s claim.
Judicial law-making is incidental to judicial adjudication and is no more than that.”
He refers to the comment of Thomas J in a New Zealand case:
The law as administered in the courts is very much concerned with the context-specific situations of individuals. It seeks to provide justice in the individual case having close regard to the facts of that particular case.”
In other words, a court does not, or ought not, to be using a case to make pronouncements but focus on the issue of the case before it:
It is not the constitutional function of any court, even the Supreme Court, to take it upon itself to make general stand-alone announcements about the law.
He refers to the history of tikanga in one of his most telling comments:
Before the rule of law came to New Zealand, disputes including disputes between tribes were resolved by brute force, a context within which tikanga operated. Article 3 of the Treaty brought Her Majesty’s tikanga to New Zealand as a new way of resolving disputes.
Glazebrook J's comments about tikanga are singled out:
[110] It is worth saying something more about values. It is the function of this Court to declare the law of Aotearoa/New Zealand and we must do so mindful of the values that in combination give us our own sense of community and common identity. We share some of these values with other nations, especially those founded on the common law tradition. Other relevant values may be unique to our nation’s history and circumstances. Tikanga and kaupapa Māori belong to this latter category and are of particular importance as tikanga is the first law of Aotearoa/New Zealand and Māori are tangata whenua: tikanga is part of the values of the New Zealand variety of the common law.
Gary Judd considers these comments to be "remarkable" and adds somewhat tersely:
I hope it is clear from the discussion above that it is not the Supreme Court’s function “to declare the law.” It is the Supreme Court’s function, as the Senior Courts Act 2016 states, to hear appeals in New Zealand on important legal matters which would formerly have been determined by the Judicial Committee of the Privy Council.
A litigant may appeal. It is through the appeal process that a case gets before the Supreme Court. It will generally get there only if an important legal matter needs to be resolved, but the Supreme Court’s function is, like that of the courts below, to adjudicate upon the litigant’s claim. In Ellis, the Court itself initiated the procedure whereby tikanga came to be a matter for consideration. Neither Ellis’ lawyers nor the Crown had raised it.
And, as a final comment:
It seems that some at least of the judges were looking for an opportunity to make pronouncements about tikanga, and some of them took it.
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See also:
