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Rāhui, Mana and Peter Ellis: the new way Tikanga Māori is growing in Aotearoa’s legal landscape.

RahuiirotoIt’s a quiet spot, this entrance to the Herekino forest. On this January morning the air was cool, and I wanted to get moving, to feel my body working by walking the track. I thought about ignoring the red-lettered sign in front of me at the track entrance. I thought about just…closing my eyes to the instruction it held that the track was prohibited to us. I could pretend that the sign was old; that it wasn’t really meant for me. Who would know, right? We’d be done in an hour, me, my cousin, our Aussie uncle & nephew too. it was only a quick walk. The ngāhere would barely even know we were there. Right?

Well, that little bit of self talk was never going to work. A rāhui had been placed over the area to protect it from the spread of Kauri dieback and it was not our place to challenge that law, or to argue about what the law was. The fierce and bloody lettering told us all we needed to know. The sign functioned just as a pou rāhui should: as a marker to tell us that the area was set aside, and prohibited to all to enter. Anyhow, there was a bunch of our whanaunga who would give us heck on our Ahipara Takiwā Facebook page if we got caught. We knew we were bound by this law, so we obeyed it. Easy.

And there you have it. It turns out there is not just one type of law in Aotearoa New Zealand. At one level this makes clear sense. There are lots of different rules to live by. Playing league on Saturday is governed by one set of rules, a tangi at the local marae is governed by another. My kids are pretty good at disobeying mine, but there are rules in our own homes, our own churches, our own spaces and places.

It feels a little bit different, though, when we refer to “the law” as in, “don’t break the law or you will go to jail”. This is, simply put, the notion that there is a nationally recognisable set of laws that we are bound by, we can be punished by, and that we are supposed to be protected by. To the extent that we ever think about it, we might know that Parliament and the Courts set out and enforce these nationally recognisable (and applicable) laws. 

What if there are nationally recognised laws that don’t originate from Parliament or the Courts? What if any or some law derived from tikanga Māori?

Pfft, you might say. Tikanga Māori is already the law of the land. It differs from place to place, it depends on the different hapū and iwi, but regardless of Pākehā laws, it exists anyway, no bunch of parliamentarians or judges makes any difference to what really goes on in Māori communities. Of course that is true. Nothing changes that. But in the main (usually) only Māori people and collectives might feel bound by tikanga, and bound to uphold it.

You might have a very different mindset.

Pfft,  you might say. Tikanga Māori is not law, it is not enforceable by the police or any institution, to has nothing to do with anyone outside the relevant Māori collective anyhow. They are not written down or confirmed by any recognisable institution, so how can they be nationally recognisable let alone applicable? Fine if those people want to see tikanga Māori for law or rules for them, go fill your boots. But the law is the law, and it is not my law. 

This is where rāhui are interesting.

Rāhui are interesting for what they reveal about how we understand law in Aotearoa New Zealand. These are tikanga; legal practices that have very specific functions for a specific purposes, they are birthed of te Ao Māori, although the word itself is understood similarly throughout eastern Polynesia (rāfui). (Check out Te Mātāpunenga’s entry about this term). 

A rāhui can be placed  where death has occurred in a specific area, in order to make the surrounding area now tapu; or to preserve and protect a natural resource, and to allow it to regenerate. Hirini Moko Mead (2003: 1) even suggested back in 1979 that a kind of ‘political’ rāhui could be placed on Māori rugby players who had been chosen to play in apartheid-era South Africa, to prohibit them from playing there. It wasn’t followed through, but the debate fostered the idea that rāhui could be used beyond its traditional sphere.

We have recently seen two very different and highly publicised accounts of rāhui. When the volcanic eruption happened on Whakaari in December last year, killing 18 people, an enormous rāhui was imposed over Ngāti Awa coastal territory at Whakatāne, Ōhope and Ōhiwa, including the Rurima, Moutohora and Te Puia ō Whakaari islands.  Te Whakatōhea and Te Whānau a Apanui, also placed rāhui over their coastal areas. People were prohibited from accessing, or taking food from, the rāhui areas, except for those involve in rescue and recovery. While some fishing an tourism operators ignored the rāhui, most did not. Government compensation was available to assist those who lost money as a result of not being able to operate.

We also saw the Covid-19 legally enforceable lockdown often referred to as a national rāhui. While some (like me) got cranky at this new suggested usage of the term, others felt very comfortable in calling the lockdown a rāhui: the word was gentler, it lacked the ugly prison connotations of “lockdown”, it got across the idea that we were prohibited from doing certain things and going certain places; that we ourselves were the subject of a rāhui because we were the resource that needed protecting, this time it was our mauri that needed replenishing. The chief executive of Te Taura Whiri i te Reo Māori Ngāhiwi Apanui even suggested that Jacinda Ardern probably has the standing with Māori communities to declare a rāhui over the whole of Aotearoa. On the other hand, he remained unconvinced that the level 4 lockdown could really be called a rāhui at all, preferring the term noho taratahi, or quarantine. Time will only tell if the term rāhui will permanently incorporate that new understanding. Time will also tell if rāhui as a practice of tikanga Māori (rather than just a gentler concept and label) could be accepted, by Māori, as something that could be extended to the entire country.

What interests me about the place of actual rāhui in our complex society is that many people, Māori or not, will obey a rāhui if they know it exists. Of course, a significant number of people will be entirely content to trample on tikanga Māori. Nevertheless experience seems to suggest that many, perhaps a majority (although that is hard to tell!)  grasp the significance of rāhui, and will comply, as happened at Whakaari, and also in smaller local examples where deaths have occurred by drowning. 

If ordinary people can often get it, what about the institutions that uphold and enforce legislation, and regulation, such as local councils, central government and the New Zealand police?  On occasion, police have been involved in monitoring rāhui, local councils and conservation authorities have also promoted awareness of rāhui, and track closures in the Waitākere ranges, for example, (but only partially) coincide with the rāhui placed in 2018 over forests by Te Kawarau a Maki. On the other hand the authorities also fail to support rāhui, creating tensions, and the enforcement of rāhui has usually been left up to Māori communities.  There is some limited legislative support for the imposition of rāhui, for example under some Treaty of Waitangi settlement legislation (such as the Ngai Tahu Claims Settlement Act 1998, ss 239–244; the Affiliate Te Arawa Iwi and Hapū Claims Settlement Act 2008 ss 51–62) and fisheries legislation (for example ss 186A and 186B of the Fisheries Act 1996).

Rāhui show Māori law intersecting with general law in surprising ways.  This has been the case for a while, and now the institutions of New Zealand’s general legal system are (slowly) catching on and catching up. 

There have been a pretty interesting conversations happening in New Zealand courts over the last few years, about the role and status of tikanga Māori in the laws of Aotearoa New Zealand.   One of the more important judicial statements was uttered in 2012 by our top judge at the time Chief Justice Sian Elias in Takamore v Clarke. This case was, at its most basic, a case about who had the right to determine where Mr Takamore could be buried – his wife as the executor of the estate, or his whānau who had buried him according to their own tikanga.  In her minority judgment in the the Supreme Court Justice Elias CJ said that:

“Māori custom according to tikanga is therefore part of the values of the New Zealand common law” (Takamore v Clarke [2012] NZSC 116 per Elias CJ [94] [emphasis added]).

This position was also echoed by the majority [at para 164], Why was this seemingly simple position was such a big deal? It helps to think of how tikanga Māori has been viewed and understood within the New Zealand legal system, and more specifically in connection with what is known as the “common law”, the law made by judges in New Zealand courts, as well as judicial decisions that have developed over centuries in England and other Commonwealth countries. 

There seem to be three main views of how to understand tikanga Māori in our legal landscape.

View one: Tikanga Māori is a distinct set of laws, obligations and practices. It doesn’t matter whether courts and parliaments recognise tikanga Māori. Whānau, hapū and iwi exercise tikanga Māori anyway. Tikanga Māori is an independent source of laws in its own right. In fact, contact with, and recognition by the general legal system can distort and damage tikanga Māori, and Courts and parliaments must not create or determine it. 

View Two:  Tikanga Māori is a distinct set of laws, obligations and practices. It may be protected by the common law made by judges, but it is not part of the common law. On this view, tikanga Māori can only be recognised and protected by the common law if there is enough evidence that it exists, and has survive into modern times. If there is the courts can affirm it, and take note of it in making their judgments, as long as Parliament has not passed a law that extinguished that tikanga (which at least means it survives in Māori communities but Court and Parliament need not take it into account). Tikanga Māori, on this view, requires Crown acknowledgment and engagement to have validity in the legal system.

A third view builds on Supreme Court Justice Joseph Williams’ important 2013 speech Lex Aotearoa, opens up further possibilities. It is possible to identify a set of principles derived from tikanga Māori that can both form part of the common law in New Zealand and influence its development. Such principles inevitably reflect tikanga Māori and its on-the-ground laws and practices that will vary from community to community, but are understood at a more elevated level, and are therefore more broadly applicable, potentially to all New Zealanders. These tikanga-based principles can sit alongside common law principles such as “natural justice”, “fairness” “equality”, themselves based on centuries of customary law and practice and developed by the Common Law. Principles such as “mana” and “whanaungatanga” and “manaakitanga” can serve to guide judicial decision-making. They are not divorced from the rights, obligations and practices of tikanga Māori on the ground but they are necessarily abstracted.

When Justice Sian Elias made her statement in the Takamore v Clark case, hers appears to have been more of a “View Three” statement. 

This brings us to Peter Ellis. We are currently awaiting a decision by the Supreme Court that will send a very clear signal as to the fate of View Three.

You may recall Peter Ellis as the man at the centre of the Christchurch Civic Creche case in the early 1990s. He was convicted of, sexually abusing children in his care as part of a team of early childhood workers at the Christchurch Civic Creche, established in what used to be the gym of my old school, Christchurch Girls’ High before it became a part of the Christchurch Arts Centre. He received a sentence of ten year’s imprisonment, and appealed his conviction before the Court of Appeal in 1994, and 1999. He sought a pardon three times, and was turned down three times. Shortly before his death in 2019 he filed an appeal against his convictions in the Supreme Court. He passed away before the appeal could be heard.

It was at this point that the case took an unexpected turn. A case brought by a living Pākehā man to appeal his convictions became, after his death, a case about the place of tikanga Māori in our law and legal system.

How could this happen? Usually when an individual dies, with an active appeal case in the pipeline, their case dies with them. In common law legal thought and tradition, when a person dies he or she loses all will – all ability to make decisions and carry out obligations. They no longer have legal capacity. On such thinking, the dead cannot speak for themselves, so they lose the ability to take part in a criminal proceeding Death is both biological and legal.

Peter Ellis’ lawyers tried anyway to get appeal heard anyway. On the 19th of November 2019 the Supreme Court (Justice Glazebrook and Justice Williams) asked the lawyers for the Crown and for Peter Ellis a question that few had really been expecting: could New Zealand establish an entirely new rule about the effect of death on such proceedings based on, or influenced by tikanga Māori? Tikanga Māori, after all, has very different things to say (compared to the existing common law) about rights and obligations after a person’s death. Was it time to turn to Māori law for the answer to a legal issue that would affect all New Zealanders?

Mike drop.

The Supreme Court gave both sides five weeks to answer that question. In that five weeks a panel of tikanga experts was convened, including Te Ripowai Higgins, Pou Temara, Hirini Moko-Mead. I was lucky enough to be there for most of that time, and grasped a sense of the threshold we were were staning on.

In June 2020 the Court reconvened and heard the arguments. Remarkably all parties took a shared position that the evidence of the tohunga was uncontested:  Tikanga Māori represents common values, processes and principles that are of relevance to all Aotearoa New Zealand.

All parties accepted too, that a potentially applicable value based on tikanga was that of mana, as the mana of every person and of the collective to which they belonged, matters, and survives death. If injury or hara (such as an unjust conviction) has been done, that can affect the mana of a person even after death. Arguments on the day were quite brief, and simply turned on whether the tikanga-based value of mana required that the appeal be stopped in its tracks (the Crown’s position), or allowed to continue (the position of counsel for Peter Ellis). The court reserved its decision.

If the Court does find that mana is a tikanga-based value that is part of the common law and can determine if the appeal goes ahead or not; as has been said elsewhere, it will mark the first significant time in our legal landscape that tikanga Māori will have been applied to an essentially Pākehā common law dispute.

And so we wait for the Court’s decision. I wonder if I have time for a quick non-rāhui bushwalk.

 

A slightly shorter, edited version of this post recently appeared on E-Tangata. 

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