A student should not be forced to learn about tikanga to be a lawyer

My oral submission to the Regulation Review Committee

Yesterday, Parliament's Regulation Review Committee heard oral submissions concerning my complaint to the Committee asking that a member of the committee move a resolution asking the House of Representatives to disallow the regulations promulgated by the New Zealand Council of Legal Education. If the regulations are not disallowed, they will take effect from 1 January 2025. Every first-year law student in New Zealand will be required to take and pass a course in tikanga Māori. In addition, tikanga will be infused into all the other compulsory subjects (contract, tort, property law, et cetera). The Committee allocated 15 minutes for me, 5 minutes for lawyer Thomas Newman (who supported my complaint), and 15 minutes for Justice Neil Campbell, who is now chairman of the NZCLE. For each of us, the allocated time was to include time for questions from Committee members.

The committee comprised three National MPs and two Labour MPs one of whom was the Committee's chairman, former Labour Attorney-General David Parker.

After reproducing my speech, I have a postscript which is an extract from a 2018 speech by the Solicitor-General which shows how the political agenda was being advanced, unbeknownst to most of us.

Mr Chairman, committee members,

The only one good reason for making the learning of tikanga compulsory for law students is that it is an essential part of the skill set of a practising lawyer.

Compulsory tikanga learning can’t be disentangled from the attempts by certain sections of the judiciary to ramrod tikanga into our laws. They are aided and abetted by lawyers who have abandoned their commitment to the rule of law and are, along with many academics and allies in the public service, riding a band wagon decked out in currently fashionable decolonisation colours.

A speech a Supreme Court judge made in 2021endorsed the proposition that at a fundamental level decolonisation involves the taking back of power and control by indigenous people. That means the exercise of power and control by one section of the community. That is incompatible with New Zealand’s free and democratic system of government.

If Parliament is concerned about New Zealand’s economic prosperity and social wellbeing, it must put a stop to this.

Consideration of the tikanga regulations is a watershed moment. This Committee has a high responsibility. It must ask the House to draw a line in the sand.

If this Committee and therefore Parliament does nothing it will be showing the green light to those who would overturn the present constitutional order.

But if a member of this Committee moves a resolution to disallow the regulations, and Parliament adopts the resolution, it will send a signal to the judiciary and to the legal and academic establishments that Parliament is sovereign and that parliament not the judiciary has the constitutional authority to make and unmake the laws of New Zealand.

Tikanga is now referred to in some legislation. Some argue this means that lawyers must be compelled to learn about it.

That argument is based on a fallacy. Tikanga may be the source of customs and customary law. Whether a custom exists is a factual matter proved by evidence. A custom may become customary law if it satisfies certain criteria proved or disproved by evidence. A custom arises from the way people behave. That’s why its existence is a factual not a legal matter.

Tikanga in itself is a religion or quasi-religion. There is no doubt about this. The tikanga experts who advised the Supreme Court in the statement of tikanga in the Ellis case, told the Court that tikanga, and I quote, “grew from and is very much embedded in our whenua.” They went on, “in some traditions, tikanga merged with that already present” when the ancestors of today’s Māori arrived in New Zealand.

The statement of tikanga says that knowledge of tikanga is passed down through sources such as institutions of learning, oratory, call, waiata, traditional chants or laments, whakapapa recitations, proverbial sayings and stories. It is also learnt through exposure to practice in everyday life. Some tikanga cannot be known to the ordinary person because it is tapu and kept confined to certain expert people.

It is self-evident that it is not law. Saying it is law does not make it so.

There has been a determined, concerted effort by political activists to make this amorphous, spiritual culture part of the law. We have judges who are renouncing their role of impartial upholders of the law in favour of advancement of the political decolonisation agenda. Again, there is no doubt about this. I quote from a 2021 speech by one Supreme Court Justice who said:

I would suggest that, until we complete the process of decolonisation, the rule of law can only be considered a work in progress. The new place of the Treaty and tikanga in the law is a start. There are of course other initiatives underway, including within and outside the courts, but these are beyond the scope of this paper”

Note “until we complete the process of decolonisation.” Who are the “we?” Obviously, “we” includes that Judge.

And a fellow Supreme Court Judge is cited approvingly for having written an article entitled

 “Decolonising the law in Aotearoa: Can we start with the law schools?”

So, starting with the law schools is one of the other initiatives underway.

This is not just legal activism; it is political activism: a concerted attempt to advance a political agenda.

The Council of Legal Education is part of the “we”. The law schools and law students are being co-opted into the advancement of the political agenda.

Introducing tikanga is also contrary to the rule of law. Laws must be publicly promulgated, clear, accessible, and generally applicable to all persons. They must be prospective, stable, and applied consistently and impartially by officials and the judiciary. Tikanga does not satisfy any of these requirements.

For a custom to be recognised as having the force of law it must be general, certain, consistent, reasonable and not repugnant to justice and morality. These are tests which have prevailed for hundreds of years. In 2011, delivering the majority judgment of the Court of Appeal in the Takamore case concerning a Tuhoe burial custom, Justice Glazebrook accepted those requirements. The Court held that the Tuhoe custom existed but aspects of it were not reasonable, so it did not attain legal status.

11 years later, in Ellis, Justice Glazebrook said the tests of generality, certainty, and consistency must be rejected because “they are contrary to the very nature of tikanga.” Regarding reasonableness and not being repugnant to justice and morality, she said “I do not consider these requirements for the recognition of custom have any place in the contemporary common law of Aotearoa/New Zealand.”

Out of her own mouth, Justice Glazebrook proves my contention that she and those of her colleagues who are like-minded do not care for and will ignore the rule of law requirements of generality, consistency, reasonableness and conformity with justice. Why? Because they are pursuing a political agenda.

How can we expect foreign investors to come here and homegrown entrepreneurs to invigorate our economy when they will be facing the uncertainties and potential corruption inherent in a system characterised by laws bereft of the “Western values” Justice Glazebrook decries.

I urge committee members to send the right message by deciding to propose a motion to the the House to disallow the tikanga regulations.

Not doing so will send the wrong message and encourage further activities calculated to undermine New Zealand’s free and democratic society.

Postscript

I have today had my attention drawn to a speech given by the Solicitor-General in October 2018 —

The role of the Solicitor-General in modern Aotearoa – Una Jagose

Hui-a-Tau Conference 2018 - Te Hunga Roia Māori o Aotearoa

Una Jagose QC, Solicitor-General

October 2018.

The following extracts from Ms Jagose's speech are germane and revealing of the way in which tikanga, a mystical cultural artifact, was being infiltrated into our legal system under the pretence that it is part of the common law.

I also want to acknowledge His Honour Justice Joe Williams who recently spoke to Crown Law about Aotearoa’s collision of two legal worlds and the promises and challenges of today’s legal system of which tikanga is an unquestionable part. And this has challenges for the Crown and for the roles of Solicitor-General and Attorney-General.

….

So what are the Crown’s long term obligations and interests?

As I mentioned at the beginning of my address, last week Justice Joe Williams spoke to my office in a sold-out, jam packed room of Crown lawyers.  And he told us “tikanga; you’ve got to get it now, because its your job”.  Tikanga is part of our common law and increasingly of our statute law too.  So how do we, the Crown’s lawyers, take our obligation to shape that law as it develops in and for Aotearoa?

I – along with my colleagues – was very inspired, and very challenged, by this.   One of the biggest challenges we have in being the Crown’s lawyers is to “get it” in terms of what the law of Aotearoa is that we are to comply with, to honour, to advance.  In order to “get tikanga” we need to do much more so that we are ready as the Crown to understand the obligations and what they look like today, and into the future.  And we have to be ready to apply all the principle and convention of our constitutional framework in all that we do – and undoubtedly that includes understanding tikanga and te āo Māori.  It always has – or it always ought to have.  If the law is to be a refuge, then in Aotearoa it must incorporate tikanga.

I have seen for myself the strength my role has and understand now, better than ever before, the solemn responsibility I have to do what I can to make the Crown a better Treaty partner, to help develop the capability of all Crown lawyers to analyse and understand the place of tikanga and te ao Māori in the laws of Aotearoa.  So that when we ask, what is “the rule of law” that our governments are committed to, we are taking the step urged by the Waitangi Tribunal in Ko Aotearoa Tenei.[18]

“unless Māori  culture and identity are valued in everything government says and does; and unless they are welcomed into the very centre of the way we do things in this country, nothing will change.

That is how I want government lawyers to think and act.  I am not saying there are easy answers here.  But I have a significant function to make sure the Crown has the capability to understand the place of tikanga and te aō Māori in our law.  And, standing as I do at the centre of the system of government lawyers, I have a unique responsibility here.  We carry the burden of ensuring the Crown’s long term obligations and interests are understood and taken into account, and that governments govern according to law, as I’ve said.