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Rob's avatar

** This response is for informational purposes only and does not constitute legal advice

A proposed karakia in court must be considered in relation to the wider landscape of the circumstances now playing out in New Zealand under Crown influence that now formally shows itself as seeking to avoid public democratic process in relation to alignment with Maori culture, UNDRIP and Treaty principles. The Crown it could be argued, is operating a gradual "salami slicing" strategy to achieve eventual co-governance without democratic consent. The bigger picture is made up of a jigsaw of smaller pieces.

The Government's incremental steps to incorporate Māori language, culture, and tikanga into various aspects of society, including place names, government departments, public institutions, the Reserve Bank, the Law Commission, sports events, and now potentially the courts can be seen as a strategy of gradual change. The approach aims to achieve significant cultural shifts without provoking widespread public reaction as the reasoning is expressed as giving respect to treaty obligations, historical wrongs, compliance with UNDRIP, and self-determination for empowering Māori such as the establishment of Te Puni Kōkiri (the Ministry of Māori Development).

Openly there is a lack of explicit democratic debate in each step. The public may not fully grasp the potential long-term implications of these changes in terms of the law of implication and custom. The concept of custom, the Dickson case, along with the proposed use of karakia in court, could be seen as part of a broader trend of gradual assimilation of tikanga into law. It provides a framework for arguing that the gradual integration of tikanga into society as customary law. Particularly regarding the direction towards co-governance. By gradually introducing these changes without significant social refusal, the government is creating a situation where the court can deem these changes implicitly accepted by society. This could pave the way for further integration of tikanga into law, potentially leading to co-governance.

The Dickson case, in this context, is significant because it represents a potential shift from cultural integration to legal assimilation. The court's decision to uphold the mandatory tikanga course, even though it was deemed irrelevant to real estate work and imposed a harsh penalty, could be seen as a step towards normalising the inclusion of tikanga principles within legal frameworks.

The proposal to begin and end court sittings with a karakia, if implemented, would further solidify the integration of tikanga into the legal system. This practice, while intended as a respectful gesture, raises concerns about the potential for infringement of individual rights, particularly the right to freedom of conscience and religion.

The "salami slicing" strategy raises concerns about the potential for a lack of transparency and democratic participation in shaping the future of New Zealand's legal and cultural landscape. Open dialogue, transparency, and a commitment to respecting individual rights are crucial for navigating this complex process.

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johanna herbert's avatar

I have a feeling this may end up requiring new legislation and perhaps a binding referendum to cement/entrench it. Although, surely no one could front a legal argument in opposition to the strength of the one you have put forward above. Thanks for all your hard work Gary. You are on the frontline and I am truly grateful. Freedom of belief/non-belief for all.

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