TEU member Jacinta Ruru (Ngāti Raukawa, Ngāti Ranginui) is Law Professor and Sesquicentennial Distinguished Chair, University of Otago, and Co-Director of Ngā Pae o te Māramatanga New Zealand’s Māori Centre of Research Excellence, University of Auckland. Here, Professor Ruru discusses the importance of our common law reflecting tikanga Māori and the values of Aotearoa New Zealand.
The Supreme Court is currently hearing a case about whether convicted sex offender Peter Ellis’ reputation survives despite his death last year. In a fascinating twist, the case has become one of our most important cases for the development of the recognition of Māori law in our state legal system. As we approach Matariki, the Māori new year, my renewed hope for the advancement of a respectful state legal system is high.
Before his death, Peter Ellis had lodged an appeal against his conviction. When he passed away, the normal cause of action would have been for the appeal to lapse. This is in accordance with our inherited English common law (common law is law that is made by judges in court decisions over time). But, interestingly, the Supreme Court wondered if his reputation could be said to continue after his death on tikanga grounds. The justices wondered what would happen if we in Aotearoa New Zealand did not follow overseas legal precedent but instead were influenced by Māori law – tikanga Māori.
As reported in Stuff, Justice Joe Williams of the Supreme Court said: "There's nothing to say that the appellant's case dies when they do. This is a very Western idea that on demise you have nothing to protect."
Māori law is the first legal system of this country. The New Zealand legal system has always recognised Māori law albeit mostly to then squash it. But, for example, the creation of the Māori Land Court in the 1860s onwards has had the direct jurisdiction to know Māori law and reconcile ownership of Māori land with the imported state law from England. There’s already direction from parliament in legislation for the courts to understand components of Māori law in the context, for example, of the use of kaitiakitanga in the Resource Management Act 1991 and whāngai adoption in family law. We even have a built in mechanism in Te Ture Whenua Māori Act 1993 (the Māori Land Act) for the High Court to state any question of tikanga Māori to the Māori Appellate Court.
The submissions being heard in the Ellis’ appeal is a sign of the growing maturity of our nation willing to develop laws that make sense for us as a country that lies in the South Pacific ocean. There are certainly sensitivities here, but if our state legal system can open up and learn more about the Māori legal system, then this is a good thing.
It is important that our common law develops in this manner. As the Court of Appeal said in 2003, the common law of Aotearoa New Zealand is different to the common law of other countries. Our common law must reflect the values of Aotearoa New Zealand. Engagement with tikanga is essential for the flourishing and robustness of our common law. Our two legal systems – the Māori one and our state legal system – need to be able to talk to one another and continue to develop side by side. These are important discussions to take us into Matariki, another new year.