This article was first published by RNZ
Māori lawyers are rejecting comments by the Minister of Justice, saying “unique” court rulings recognising tikanga Māori could cost the country investment.
Te Hunga Rōia Māori, the Māori Law Society, disagreed with the minister, saying tikanga Māori isn’t a “bolt-on” that makes New Zealand law “bespoke” in a negative sense, and it actually strengthens the rule of law.
Last week, Paul Goldsmith said he was worried New Zealand was developing a “bespoke” legal system that incorporated concepts of tikanga Māori.
He emphasised the government was “absolutely prepared” to legislate “over the top of judgements” it needed to, in order to provide more clarity.
On behalf of the organisation of Māori lawyers, co-presidents Natalie Coates and Tai Ahu have today written an open letter saying tikanga is the first law of Aotearoa and has been recognised for generations in statutes, court decisions and Treaty jurisprudence.
“All legal systems are, by definition, shaped by their own histories and values. The common law itself is “bespoke” to the communities that develop it.”
They explain that for New Zealand, that meant a legal system grounded in both tikanga Māori and the common law tradition.
“Far from being a weakness, this is a source of strength and legitimacy.”
The implication of the minister’s comments, that tikanga was “inherently unpredictable”, was wrong they said, explaining that tikanga can be and is discerned by the courts, guided by precedent, evidence and resources.
“Judicial recognition of tikanga has been careful, principled, and incremental. It is anchored in the same legal standards of fairness, reasonableness, good faith, and proportionality that underpin all judicial reasoning.”
They said they were more disturbed that the remarks had come from the Minister of Justice, saying it was inappropriate for a member of the executive to threaten a change of legislation in the event particularly reasoning was deployed by the courts.
“Such statements risk eroding public confidence in the courts and amount to a veiled threat to judicial independence - a far greater danger to the rule of law than the incorporation of tikanga.”
The lawyers were also concerned by the minister pointing to the Marine and Coastal Area Act (MACA) legislation as an example of the government making changes to legislation.
Goldsmith had told RNZ the government had already demonstrated its willingness to overturn court decisions “if required”, citing the Marine and Coastal Area Act.
The government is forging ahead with plans to change the law governing New Zealand’s foreshore and seabed, despite a Supreme Court ruling last year that appeared to undercut the rationale for the change.
The Māori Law Society said it was “misleading” to claim the amendments were about clarification and certainty.
“Framing these amendments as part of any quest for “certainty” misrepresents their actual purpose and diverts attention from the ongoing denial of Māori property rights recognised at law.”
They said what actually created instability was a government that routinely legislated over court decisions it doesn’t like.
The lawyers referenced other countries where First Nations rights or customary law were written into their constitution, such as Canada, Australia and South Africa.
“None of these countries have seen investment dry up as a result. Likewise, there is no evidence that the application of tikanga is stifling investment in Aotearoa.”
On the contrary, they indicated Māori had a long and proven record of co-investing with international partners, from the Sealord fisheries settlement to the recently announced $1 billion partnership between Waikato-Tainui and Brookfield.
“Te Hunga Rōia Māori rejects the suggestion that economic certainty would be maximised by excluding tikanga from our legal system.”
RNZ reported on Goldsmith’s comments over the weekend. He told RNZ tikanga Māori was increasingly addressed in the courts and legislation, representing a “unique strand in New Zealand’s legal landscape, alongside countries we compare ourselves with internationally”.
He said having law that recognised “who we are as a nation” and reflecting “our unique circumstances” was a good thing, but the implications of that legal development should also be considered.
“A core foundation of our success as a nation is predictability in the law,” he said. “To be a successful modern economy, we need to attract investment to this country domestically and internationally.
“Such serious, long-term investment requires predictability and certainty in our institutions.”
In response to the Māori Law Society, he had nothing further to add except to indicate he wasn’t referring to particular examples of a loss of investment, but to a risk that should be considered.
Ellis v R - the role of tikanga
The original comments were made by Goldsmith at an event hosted by the Law Association. Law News reported the comments had been in response to a question from the audience citing an article by New Zealand Initiative chair Roger Partridge calling for parliamentary intervention “to restore appropriate boundaries and legal certainty” following the Ellis v R decision in 2022.
Goldsmith responded by referencing the government’s moves on MACA, and on the issue of addressing judgements, told the audience “there’ll be more in this space”, reported Law News. But there were no specific examples given.
Coates was also one of the lawyers who represented Peter Ellis in the successful appeal to quash his convictions, an appeal the Supreme Court ruled could continue despite his death - a departure from common law norms.
Coates had been brought on by Ellis’ legal team to consider tikanga as part of the appeal.
Under tikanga, the customary rules which govern Māori life, Ellis would have a right to clear his name or re-establish his mana, even if dead. In te ao Māori, mana and reputation carries on in whakapapa, rather than an individual’s life.
Speaking to RNZ on Monday, Coates explained the Supreme Court had essentially confirmed tikanga as part of the common law of the country, and it could inform the development of law here.
She said the judges took into account a range of factors when deciding whether the case should continue, but she didn’t think tikanga was the “decisive factor.”
She acknowledged it was significant because the Supreme Court articulated it clearly, but in her opinion it wasn’t “new” and thinks the significance or the effect of the ruling was over-inflated.
“We’ve got cases dating back to not long after courts were established in Aotearoa recognising custom in various different ways.”
She said people cite the case as a “turn the wold around” type case but it didn’t “break the wheel” and “send our whole legal system into chaos.”
Coates didn’t know what else the minister might be considering when it came to legislating “over the top”, but that was what was concerning at a broad level, she said.
“It’s just kind of this general veiled threat around overturning cases that stand on or emphasise tikanga, and so that’s sort of concerning in terms of the boundaries of what the executive should be saying to the courts.”
By Lillian Hanly of RNZ