Tikanga is not law #2

Diving into the unknowable: a misguided experiment

“Tikanga is not law”[1] concluded thus:

Beliefs, even if common to the entire population, are not law. However, beliefs may cause people to act in a certain way. Those actions may become customary and may even mature into customary law.

Where tikanga beliefs have been acted on, they may have given rise to customary behaviour and those customs might have matured into a species of customary law applicable for specific purposes, for example for determining who owns Māori land, but the Supreme Court went way beyond that by declaring that tikanga was first law.

Calling tikanga something which patently it is not, not only offends reason but undermines the value of what it actually is. Making a falsehood a fundamental part of the description of its nature is not a good way to ensure its survival. I suspect this will become apparent in the fullness of time.

This essay has mainly considered what is law and whether tikanga is law by reference to the Statement of Tikanga. My next essay on the subject will examine the Supreme Court’s judgment to see whether any redemption is to be found in the reasons given for the summarized conclusions.

I am breaking up examination of the judgment into separate essays. The first aspect is the Supreme Court’s willingness to make or consider making pronouncements of a general nature about the place of tikanga in the law.

A minority of the Supreme Court – O’Regan and Arnold JJ – did not consider Ellis to be “a suitable case for the Court to make pronouncements of a general nature about the place of tikanga in the law of Aotearoa New Zealand,” but a majority – Winkelmann CJ, Glazebrook and Williams JJ – did make pronouncements of a general nature. “Tikanga is not law” quoted the summary of the majority’s conclusions, including that tikanga was “first law.”

Of the majority, Winkelmann CJ and Williams J made tikanga part of their reasons for allowing the appeal to continue despite Peter Ellis’ death. Glazebrook J did not make it part of her reasons but did make pronouncements of a general nature. So, I have decided to divide the “general pronouncements” aspect into consideration of the judgments of the minority and Glazebrook J and to deal with the judgment of the Chief Justice and Williams J in a separate essay.

O’Regan and Arnold JJ’s joint judgment noted some of the reasons they considered Ellis not to be a suitable case for pronouncements of a general nature: the Supreme Court did not have the benefit of lower court judgments because tikanga came up for consideration for the first time in the Supreme Court[2], all counsel accepted that tikanga was a factor, so it came before the Court “in an uncontested environment and in circumstances where the Court has not had to address a number of issues of both legal and constitutional significance.” Some of these were noted:

These include: how the Court can identify when tikanga is relevant to the case at hand and when it is not; if it is relevant, how it should be addressed; whether tikanga is a separate or third source of law; how the relevant tikanga should be brought to the Court’s attention (noting the acknowledgment in the reasons of Glazebrook J that the process used in this case, though commendably thorough and authoritative, will not be able to be followed in more run-of-the-mill cases); how the application of tikanga in one area of the law affects the common law in another area; and how to avoid tikanga being distorted when applied by courts. [3]

Coming before the Court in an uncontested environment is another way of saying there was no contradictor, an aspect I discussed in "Tikanga is not law." As to the minority’s last point, there is a way of avoiding tikanga being distorted by courts: stop treating it as something it is not; treat and respect it for what it is.

It seems that the minority may have been prepared to make pronouncements of a general nature had circumstances been different. This leads to an important point: it is not the Court’s business to make general pronouncements. The courts’ job is to decide individual cases as they come forward for decision, as was explained in 1996 by former Australian Chief Justice, Sir Anthony Mason.

Sometimes a judge … will say that it is the responsibility of the courts to keep the common law up to date or in serviceable condition. That is true. But the statement tends to over-emphasise the role of the courts as law-making agencies. It almost pictures the courts as law reform agencies charged with the duty of overseeing the laws for want of modernity. The fact is that courts do not initiate cases; they exercise jurisdiction only when called upon to do so by a litigant and then they are required to adjudicate upon the litigant’s claim. A court of first instance is bound by the decisions of the courts higher in the hierarchy, and those decisions or the provisions of the relevant statute will provide the determinative principles of law, except in a very rare case. The cases in which a court is called upon to determine whether a principle of law is appropriate to current conditions of society are relatively few. Generally they are High Court cases. So it is a serious misapprehension to think of the courts, even the High Court, as being engaged in some ongoing review of the common law for obsolescence, so to speak.[4]

Earlier in his article, Sir Anthony had noted that “Judicial law-making is incidental to judicial adjudication and is no more than that.”[5] In other words, a court does not, or ought not, to be using a case to make pronouncements.

When exercising the adjudicator function requires a decision about what the law is, the court must make that decision, but it is not the constitutional function of any court, even the Supreme Court, to take it upon itself to make general stand-alone announcements about the law. If Parliament does not address the issue, change -- if it is to happen – generally occurs gradually through individual decisions which address what is required to enable that case to be decided.

This aspect of judicial methodology is emphasised in a passage from Airedale N.H.S. Trust v Bland [6], quoted by Sir Anthony when considering judicial determination of controversial issues which raise moral and ethical values [7], where Lord Browne-Wilkinson pointed out that where Parliament has not acted, “a gradual and uncertain process [will] provide a legal answer to each new question as it arises”:

Where a case raises wholly new moral and social issues, in my judgment it is not for the judges to seek to develop new, all-embracing, principles of law in a way which reflects the individual judge's moral stance when society as a whole is substantially divided on the relevant moral issues. … The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then judge-made law will of necessity through a gradual and uncertain process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed.

With a perspective emphasizing justice but exhibiting the same idea of a focus on the specific case, retired Court of Appeal Justice E.W (Sir Ted) Thomas, who was also an acting Supreme Court Justice from time to time over several years, observes that “the law as administered in the courts is very much concerned with the context-specific situations of individuals. It seeks to provide justice in the individual case having close regard to the facts of that particular case.”[8]

It is also the way in which decisions state what the law is, for the purposes of the specific case the court is called upon to decide.

Judges must confine themselves in this way. If they do not, their actions may threaten judicial independence in the ways indicated by Lord Scarman in a 1980 case[9]:

Great judges are in their different ways judicial activists. But the Constitution's separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge's sense of what is right (or, as Seldene put it, by the length of the Chancellor's foot), confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today.

Sir Anthony Mason gave a similar warning.

… the courts act at their peril if, by their actions and decisions, they set at risk public confidence in the courts. Judges accept that the rule of law in our community depends upon the maintenance of public confidence in the administration of justice and that means maintenance of public confidence in the courts. Absence of public confidence in the administration of justice would bring unwanted and untold consequences in its train. It would result in non-compliance with the court orders and greater difficulty in enforcing them. It would lead us down a path away from the peaceful settlement of legal disputes into a world in which people would be inclined to take the law into their own hands. It would take us back to an earlier stage in the development of civilised society when disputes were resolved by brute force.[10]

Before the rule of law came to New Zealand, disputes including disputes between tribes were resolved by brute force, a context within which tikanga operated. Article 3 of the Treaty brought Her Majesty’s tikanga to New Zealand as a new way of resolving disputes.

Judges avoid these risks Lord Scarman and Sir Anthony were speaking of in many ways, one of which is to abstain from pronouncements about the law, as if from a judicial pulpit. They confine themselves to the findings of law needed for the case in hand. They certainly ought not to take what they are told are the beliefs of a section of the community and elevate those beliefs into law or the more benign sounding -- but in this context almost equally pernicious -- “sources” of law. Someone’s belief, even if shared by a number of others, does not have the status of law or a source of law. This is not just because there are many different beliefs in a diverse multi-cultural community (whose belief do you choose to elevate?) but because beliefs are subjective. They cannot be observed, only proclaimed.

Whilst beliefs cannot be observed, they may result in people behaving in a particular way. By contrast with beliefs, behaviour may be observed. When a sufficient number of people behave in the same way the behaviour may be observed to have become customary. When the behaviour has prevailed for long enough, and certain other criteria have been satisfied, the custom may have matured to be a customary law. Consistent behaviour may be described as a “usage” within a particular trade, industry or community, or more generally within the whole community. A court may recognize it and give it the force of law for the purpose of resolving a dispute in a case where the usage is replied on.[11] The judicial oath recognizes customs and usages by requiring judges to “do right … after the laws and usages of New Zealand.”

Existence of the usage must be proved:

In my judgment, the evidence given does not contain the required proof of the existence of the usage pleaded. The belief of Mr Darlow is an insufficient basis: Tucker v Linger (1882) 21 Ch D 18 (CA), 34 (Jessel MR), 38 (Cotton LJ); affirmed (1883) 8 App Cas 508 (HL). Jessel MR said:

"The custom therefore must be collected not from what the witnesses say they think the custom is, but from what was publicly done throughout the district" (21 Ch D 18, 34).[12]

In short, beliefs are subjective; by contrast, conduct is capable of objective observation and proof. The Statement of Tikanga talks of values, standards, principles and norms – beliefs -- the Māori community subscribed and subscribe to. This is to be compared with what was publicly done. Only what is proved to have been publicly done qualifies for consideration to be a custom which might have standing as customary law either within a specific community or more generally.

Returning to Ellis, O’Regan and Arnold JJ concluded their general discussion of tikanga by indicating that they preferred “to allow the law to develop in cases where the consideration and application or incorporation of tikanga in the decision affects the outcome and, preferably, where there has been an adversarial process in relation to those issues.”[13] That is, where there has been a contested process, where there has been a contradictor.

Despite avoiding making general pronouncements, O’Regan and Arnold JJ nevertheless did consider tikanga “in this case.” They noted that all parties agreed it was relevant. Then they made this surprising statement: “The fact that the appellant was not Māori and none of the complainants is Māori did not affect that.”[14] It is extraordinary that even the minority were prepared to consider beliefs which, so far as anyone was aware, were not subscribed to by any of those affected by the decision. This highlights the absence of an analysis of the tikanga explained in the Statement of Tikanga to decide its status from a legal perspective, and of a reasoned explanation of how beliefs could be law or a source of law. One can envisage the possibility that shared beliefs might be important in some cases, but here there were no tikanga beliefs shared by the affected parties, let alone a usage or custom which heretofore would have been required before incorporation in law could have been considered a possibility.

Turning now to Glazebrook J’s judgment. In paragraph [107], Her Honour adopted “the Statement of Tikanga’s discussion of the nature of tikanga as including all the “values, standards, principles or norms that the Māori community subscribed to, to determine the appropriate conduct””. She also adopted the Statement’s description of tikanga “as comprising both practice and principle,” and she acknowledged “that tikanga Māori was the first law of Aotearoa.” She was thereby explicitly saying that values, standards, principles and norms embodied in tikanga are law. She did this without examining what “law” is.

After discussion about earlier cases, references to tikanga in legislation and suchlike, her judgment follows with this remarkable passage:

[110] It is worth saying something more about values. It is the function of this Court to declare the law of Aotearoa/New Zealand and we must do so mindful of the values that in combination give us our own sense of community and common identity. We share some of these values with other nations, especially those founded on the common law tradition. Other relevant values may be unique to our nation’s history and circumstances. Tikanga and kaupapa Māori belong to this latter category and are of particular importance as tikanga is the first law of Aotearoa/New Zealand and Māori are tangata whenua: tikanga is part of the values of the New Zealand variety of the common law. The consideration of common values is important when applying the common law to new or novel situations or when considering the need (or otherwise) to develop or modify the common law.

I hope it is clear from the discussion above that it is not the Supreme Court’s function “to declare the law.” It is the Supreme Court’s function, as the Senior Courts Act 2016 states, to hear appeals in New Zealand on important legal matters which would formerly have been determined by the Judicial Committee of the Privy Council.[15]

As Sir Anthony Mason stated in the words I placed in italics, “The fact is that courts do not initiate cases; they exercise jurisdiction only when called upon to do so by a litigant and then they are required to adjudicate upon the litigant’s claim.”

A litigant may appeal. It is through the appeal process that a case gets before the Supreme Court. It will generally get there only if an important legal matter needs to be resolved, but the Supreme Court’s function is, like that of the courts below, to adjudicate upon the litigant’s claim. In Ellis, the Court itself initiated the procedure whereby tikanga came to be a matter for consideration. Neither Ellis’ lawyers nor the Crown had raised it. It seems that some at least of the judges were looking for an opportunity to make pronouncements about tikanga, and some of them took it.

In paragraph [110] Her Honour also says: “Tikanga and kaupapa Māori belong to this latter category [other relevant values may be unique to our nation’s history and circumstances] and are of particular importance as tikanga is the first law of Aotearoa/New Zealand and Māori are tangata whenua: tikanga is part of the values of the New Zealand variety of the common law.”

These values may be values for some members of the community, presumably including the Judge, but there is no legal basis for importing them into the legal system to make them applicable to the whole community as law which must be observed. As Lord Browne-Wilkinson said, “The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society.”

In the present case, what happened was even worse: seeking to impose tikanga standards on the general community is an infringement of fundamental freedoms affirmed by s 13 of the Bill of Rights: the right to freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference.

The Judge holds that “tikanga is part of the values of the New Zealand variety of the common law.” Tikanga cannot be part of the common law of New Zealand, because it cannot be part of the law: (a) because there is no principled basis for importing beliefs into the law, and (b) because to attempt to do so is a direct contravention of s 13 of the Bill of Rights which binds the Supreme Court as part of the judicial branch of the government of New Zealand.[16]

Elsewhere Her Honour says tikanga is first law, but here she says it is part of “the values” of common law in New Zealand. However, common law is a system of laws. It is not a system of values, although it may reflect community values where a consensus is discerned to exist. The most important community value for a court is justice, justice according to law, which the judicial oath renders as to “do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will.”

The common law of England started developing in a systematic way after the Norman Conquest of 1066 created centralised authority and royal courts to administer law. It grew out of local customs, what people actually did within communities, and if these customs became sufficiently general gradually extending to the whole community, hence “common” law.[17] Something did not get into the common law because a judge or judges decided that “values” were imported into it.

Legal methodology, with its systems of precedent and reasoning from earlier principles is designed to minimize the risk of the judge insinuating his or her values into the decision. She does this just as much when she characterizes them as tikanga values as she would if she insinuated them as Christian or Islamic or Hindu values. In any such case, they are imported only because the values are subscribed to or have become important to the judge. In a system governed by the rule of law that ought not to happen.

Judges must dispense justice according to law, not according to their own views of what is right. That’s why when something new comes up for decision, the solution must be derived from the existing body of law or, very rarely these days, from what the community is actually doing (custom).

Glazebrook J has firm views about the matters opined on in [110] and elsewhere.[18] They are no doubt, for her, “moral and social issues” within Lord Browne-Wilkinson‘s use of the phrase. As to that, I repeat what was quoted earlier from His Lordship’s speech: “Where a case raises wholly new moral and social issues, in my judgment it is not for the judges to seek to develop new, all-embracing, principles of law in a way which reflects the individual judge's moral stance when society as a whole is substantially divided on the relevant moral issues.”

Airedale NHS Trust v Bland, the case in which His Lordship made that statement, concerned an application for declarations to allow discontinuance of life-sustaining treatment and medical support measures designed to keep alive a person in a persistent vegetative state, for the purpose of enabling that person to end his life and die peacefully with the greatest dignity and the least of pain and suffering and distress. The case was decided in favour of granting the declarations by the application of existing law, but the judges recognised that there could be similar cases where the existing law was inadequate to provide an answer. They nevertheless resisted the temptation to strike out and develop new law, holding that this was a matter for Parliament.

In the Bland extract, the key words are “develop new, all-embracing, principles of law which reflects the individual judge’s moral stance.” This is what Glazebrook J is purporting to do with the reasoning in paragraph [110], to justify what she had said in paragraph [107]. In doing so, she is departing from established judicial methodology. Moreover, she is doing it gratuitously because her findings, earlier in her judgment, had enabled her to support continuance of the appeal. Her pronouncements about tikanga were unnecessary for her decision. This is an additional departure from established judicial methodology.

A feature which does distinguish tikanga from issues such as those in Bland is that tikanga has been referred to in legislation. This was relied on by the Supreme Court judges. I consider the use in legislation to be irrelevant as a reasoned basis for pronouncements on tikanga’s place in the law and shall deal with that in a separate essay.

There are other departures from established judicial methodology in Her Honour’s judgment. For example, in [114], “The requirements for custom to exist as a general custom and to be certain and consistent do not accord with the nature of tikanga.” Instead of drawing the obvious conclusion that tikanga does not conform with what is required for it to be law, Her Honour held that the law concerning custom should be overridden in favour of a set of beliefs of a spiritual nature. No principled basis for doing so can be discerned. The requirements for existence of a custom have existed for hundreds of years but were dismissed out of hand simply because they do not accord with the nature of tikanga.

There may also be contravention of the rule of law’s requirement for judicial independence. Glazebrook J, whilst attributing the status of law to tikanga, acknowledged the courts’ lack of expertise. She says: “I recognise that in general the sources of tikanga and those vested with the expertise and authority to expound on it will be external to the courts.”[19] After quoting paragraphs 35-37 of the statement of Tikanga[20], she adds: “[124] There would not be many judges or indeed counsel who could lay claim to such expertise.” That is not surprising because paragraph 35 of the Statement of Tikanga says:

Knowledge of tikanga is passed down through sources such as: wānanga (institutions of learning), whaikōrero (oratory); karanga (call); waiata (songs); mōteatea (traditional chant or lament); whakapapa recitations (genealogy) whakatauākī (proverbial sayings) and pūrākau (stories). It is also learnt through exposure to its practice in everyday life.

This and its general nature as a set of spiritual or spiritually originated beliefs makes it impossible for most judges and for most of the community to know what tikanga would require of them. Indeed, some tikanga is actually kept secret (“tapu (sacred) and kept confined to certain expert people” [21]), and therefore completely unknowable to other than the tikanga elites!

Deciding on the basis of matters so derived would force judges into contravention of the rule of law. Judges must decide for themselves. Guideline 19 of the New Zealand Guidelines for Judicial Conduct 2019, includes that “Judicial decision-making is the responsibility of the individual judge, even in a collegiate appellate court.” A court may not abdicate its decision-making responsibility. With tikanga, that’s what Glazebrook J says must be done with regard to the content of tikanga. Someone external will be deciding what may be a critical element of a case.

If tikanga is “first law”, the presiding judge will need to understand it to undertake reasoned analysis of what is argued to be a guiding rule applicable to a case. If she is unable to do that, she cannot properly exercise her judicial function.

At the end of the day the decision will still appear to be the Court’s, but in reality, not. Remembering tikanga’s spiritual nature – that it “grew from and is very much embedded in our whenua (land)…. and “In some traditions, … merged with that already present,”[22] -- and that it is handed down in the manner described in paragraph 35 of the Statement of Tikanga, in so far as the decision relies on tikanga, it cannot be a “reasoned” decision because reasoning is out of reach. The judge must necessarily rely on someone else’s claim that, e.g., this is the right way of doing things because that is what tikanga proclaims. In such a case, the decision may be the Court’s in form, but not in substance.

The inability to engage in reasoned decision-making underscores that the Court has grievously erred by ascribing to tikanga a place in judicial decision-making it does not have. Relying on a belief system founded on spiritual ideas creates uncertainty and arbitrariness and imperils the judicial system’s ability to maintain the confidence of the community. How is anyone to know how to comply, or order their affairs in accordance with this tikanga law when even the judges cannot know what it requires and are unable to engage in reasoned discourse about it? Faith in the judicial system is eroded and judicial independence is put at risk in the ways described by Lord Scarman and Sir Anthony Mason.

The consideration of tikanga did not change Glazebrook J’s view on the outcome of the case[23]. Only Winkelmann and Williams JJ incorporated aspects of tikanga in their reasons. As just two of the five judges actually utilised tikanga for the purposes of the decision, the pronouncements are not binding precedents. Other judges, even those in lower courts, are free to differ.

It is to be hoped they will do so, and that the judicial system as a whole steps back from the abyss and renounces this misguided experiment.

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[1] https://garyjuddkc.substack.com/p/tikanga-is-not-law?utm_source=profile&utm_medium=reader2.

[2] [284].

[3] [285].

[4] "The Judge As Law-Maker," https://www.austlii.edu.au/au/journals/JCULRev/1996/2.pdf, pages 6-7. The italics are mine.

[5] Ibid., page 2.

[6] Airedale NHS Trust v Bland [1993] 1 All ER 821

[7] Op cit., note 4, page 11.

[8] Rt Hon Sir Edmund Thomas, Reflections on Justice, (2020) 51 VUWLR 439, 444; https://ndhadeliver.natlib.govt.nz/delivery/DeliveryManagerServlet?dps_pid=FL59531118

[9] Dupont Steels Ltd v Sirs [1980] 1 All ER 529 at 550.

[10] Hon Sir Anthony Mason, AC KBE, “The courts and public opinion,” http://www.austlii.edu.au/au/journals/NSWBarAssocNews/2002/11.pdf, page 30.

[11] For example, in Woods v NJ Ellingham & Co Ltd [1977] 1 NZLR 218, where a party relied upon a practice as being the custom of a particular part of the drain laying trade.

[12] Ibid., at 223.

[13] [290].

[14] [313].

[15] Senior Courts Act 2016, s 66(1).

[16] New Zealand Bill of Rights Act 1990, s 3.

[17] The Britannica gives a relatively brief but comprehensive description of its development: https://www.britannica.com/topic/common-law.

[18] Refer The Humpty Dumpty approach to the rule of law, https://garyjuddkc.substack.com/p/the-humpty-dumpty-approach-to-the?sd=pf

[19] [123].

[20] These paragraphs are quoted in “Tikanga is not law.”

[21] Paragraph 36.

[22] Statement of Tikanga, paragraphs 22 and 23.

[23] The minority at [289]. Glazebrook J at [146].