Blogging is not easy on time, which for all of us is fixed. Nobody can make any more of it. Time is the enemy for a lot of people. I have a busy work life, and a couple of other interests keep me occupied, hence the time I can dedicate to this blog is regretfully limited. I would rather spend the reasonably limited amount of time I have for writing here dedicated to things that are useful and informative, rather than comment on the day-to-day socialism and slow degradation of this once great country through either the Labour or National governments.

The Supreme Court decision in the Peter Ellis appeal is one such useful and informative matter that I feel the general populace of this once great Westminster, parliamentary democracy needs to understand. So I thought it would be helpful for the generally small number of readers here for me to follow the lead of PaulL on Kiwiblog, who has written a number of excellent posts about our tax and transfer system economy, and do the same for the Ellis decision. I cannot stress enough to readers how significant this case in terms of the the social fabric of this country, the rule of law, and the legal and institutional framework of New Zealand moving forward. On this, I wholeheartedly agree with Stephen Franks’s description of things:

Courts now have a wide discretion to apply tikanga in any case they see fit. In addition, some commentators believe the decision has added another layer of complexity and uncertainty to the law.”

(Franks) goes on to comment that the decision should embarrass all New Zealand lawyers, “as a display of radical chic masquerading as legal reasoning”.

“Our top court can use the jargon, but if it understands rule of law principles it has decided they are just too yesterday – indeed ‘colonial’.”

In this Part 1, I will simply introduce the background to the decision and what it briefly said in terms of tikanga, and then try and explain what tikanga is. I say try and explain because not even the tikanga experts in the hearing could explain it, and neither could the Supreme Court adequately define what it is, and that is because it cannot be defined. That itself is a major problem.

In Part 2, I will break the case down and provide some sort of analysis, as difficult as that might be considering the case is both very complex (the Supreme Court acknowledged this) and is 126 pages in length. This Part 2 might even be broken down into subparts.

Part 3 will be focused on where-to-from-here. I’ll lay my cards on the table now in regards to this and say that parliament must legislate to override this decision and stamp its legislative authority on what is clearly an activist Supreme Court. There is precedent for this: Helen Clark with the Foreshore and Seabed Act. Clearly this government won’t go near this, but the new National/Act government must.

I cannot promise to produce three to four cohesive articles in short order, because as explained above time will restrict that. But certainly I will cover most aspects over the coming weeks. It’s simply too important not to.

Finally, it is very important to provide this commentary because our MSM is almost dead in the water over this. There has been little analysis and coverage. I recall seeing one article which basically said the Supreme Court decided tikanga could be argued on a case-by-case basis. That, my friends, is what is called misinformation. Martin Van Beynen wrote something half decent, here. But he’s from Stuff, so it counts for very little.

Background

There is no need to explain the Peter Ellis case background which dates back to his convictions in 1993. The case before the Supreme Court was centred on whether the Supreme Court could continue with the appeal against his convictions considering Ellis died in 2019. There were two parts to the appeal: 1) the issue of the posthumous continuation of the appeal, and 2) the substantive appeal itself – whether the convictions were unsafe and should be overturned.

In terms of tikanga, it should really have played no part in the appeal. It wasn’t anything that the courts heard in the decisions in the lower courts, and Ellis himself was not Maori and Ellis never introduced the concept of tikanga at any stage. So how did it become part of the appeal? Audrey Young explains it (paywalled Herald article):

It was Justice Susan Glazebrook who first suggested to Peter Ellis’ team during a hearing that it might develop arguments about tikanga Māori to support its case, despite him being Pākehā.

Now, it’s not unusual for judges to request of lawyers to prepare arguments on an issue that the judges deem relevant to the appeal, but perhaps the lawyers have not considered. But the important aspect of this is that the legal principle the courts want submissions on should bear direct relevance to the matter before the court in some way. And so here, Justice Glazebrook considered, in regards to the issue of the posthumous rights of an appellant, tikanga was a relevant issue to be put before the Supreme Court. There’s no possible sensible explanation for why this was necessary, apart from believing the Supreme Court wanted to stamp its authority on the issue, and perhaps guide the Law Commission which is producing some work on it.

Tikanga

The Supreme Court was guided by two experts who appeared at the appeal as Intervener on behalf of, well, not the New Zealand Law Society, but rather the Maori Law Society. The distinction between these is an issue in itself deserving of some comment, but for now it’s merely a digression. The experts in front of the Supreme Court were Sir Hirini Moko Mead and Professor Pou Temara.

They explained to the court that tikanga was, “the Maori common law”, and is “the first law of Aotearoa”. Note the tense here, not “was”, but “is”. In other words, it was never overridden and still exists.

So essentially tikanga is the Maori way of doing things. Interestingly, the customs of tikanga are “acknowledged when they are maintainted by the people and are observed as fact“. As observed earlier, this is essentially law, and apparently in New Zealand, it still exists as such. The elder experts continued:

So tikanga is a number of things as listed, once they are observed by the people, and then just noted to be fact. As I understand it, the reference to “people” is all people, not just Maori. As readers will note, tikanga is also a number of other things that are not listed above (“but are not limited to”). It is important to remember that this is now law.

This is the end of Part I. In due course I will provide the Supreme Court’s findings in regard to tikanga and how it operates in New Zealand.