Yearbook of New Zealand Jurisprudence Editor Dr Richard A Benton Editor: Dr Richard Benton The Yearbook of New Zealand Jurisprudence is published annually by the University of Waikato, Te Piringa – Faculty of Law. Subscription to the Yearbook costs NZ$40 (incl gst) per year in New Zealand and US$45 (including postage) overseas. Advertising space is available at a cost of NZ$200 for a full page and NZ$100 for a half page. Communications should be addressed to: The Editor Yearbook of New Zealand Jurisprudence School of Law The University of Waikato Private Bag 3105 Hamilton 3240 New Zealand North American readers should obtain subscriptions directly from the North American agents: Gaunt Inc Gaunt Building 3011 Gulf Drive Holmes Beach, Florida 34217-2199 Telephone: 941-778-5211, Fax: 941-778-5252, Email: [email protected] This issue may be cited as (2010) Vol 13 Yearbook of New Zealand Jurisprudence. All rights reserved ©. 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ISSN No. 1174-4243 Yearbook of New ZealaNd JurisprudeNce Volume 13 2010 Contents foreword The Hon Sir Anand Satyanand i preface – of The Hon Justice Sir David Baragwanath v editor’s iNtroductioN ix Dr Alex Frame, Wayne Rumbles and Dr Richard Benton 1 Dr Alex Frame 20 Wayne Rumbles 29 Dr Richard A Benton 38 Professor John Farrar 51 Helen Aikman QC 66 certaiNtY Dr Tamasailau Suaalii-Sauni 70 Dr Claire Slatter 89 Melody Kapilialoha MacKenzie 112 The Hon Justice Sir Edward Taihakurei Durie 152 Robert Joseph 160 a uNitarY state The Hon Justice Paul Heath 194 Dr Grant Young 213 The Hon Deputy Chief Judge Caren Fox 224 Dr Guy Powles 238 Notes oN coNtributors 254 foreword 1 University, Distinguished Guests, Ladies and Gentlemen, I greet you in the Niuean, Tokelauan and Sign Language. I stand before you today not only in the capacity of Governor-General, but Panel from 1997 to 2006. As such, I have amongst you many personal and professional friends. Grey and Iwikau: a journey into custom at Government House in 2002 the Institute gifted an illustration from the book to Government House and it still hangs in Government House and is a reminder of the connection. , and secondly to project was devised It also reflects the coming together of Pacific scholars to advance the understanding of custom law and its contribution to state legal systems. 1 Opening Address at the Symposium, Tainui Endowed College, Waikato, 22 June 2007, slightly abridged. Original text may be downloaded from <http://gg.govt.nz/node/630>. ii Yearbook of New Zealand Jurisprudence Vol 13 themes will be the subject of much discussion over the following days I would tikanga to New Zealand in 2007. Where we have come from, as a nation, is important in determining the we inherited English common law and legislation yet, even at an early stage, to the Native Rights Act 1865 from Grey and Iwikau: A Journey into Custom: “aboriginal Maoris should to a large extent continue to live by their own tribal customs, and to this extent those customs were given by statute, and still remain, the authority of law”.2 As a distinct New Zealand customary law developed the survival of tikanga The disappearance of some practices – such as deliberate cursing – and the arrival of others – such as burial practices – is an example of the adaptability In conjunction with this, a continual recognition and application of tikanga importance as a part of New Zealand common law. Today it is of practical relevance in sentencing, in family protection claims or where a statute Act. It is also applied in situations where customary law survives unaffected more importantly, consider the future role it may play in our legal system. With many cases more prevalent, much can be learned both from their experiences and our own over the next two days. Waiho i tetoipoto, kaua i tetoiroa “Let us keep close together, not far apart.” 2 Sir John Salmond (7th ed, Stevens and Haynes, London, Grey and Iwikau: A Journey into Custom (Victoria University Press, Wellington, 2002) at 64. 2010 Foreword iii I began speaking in all the New Zealand realm languages. May I close by in your endeavours. iv Yearbook of New Zealand Jurisprudence Vol 13 preface – 1 The week of 22 June 2007 was a time for treble celebration. That day and over the following weekend we recognised the brilliant success to date of Te the following Friday there was a further event to mark the 20th anniversary of the ran down the skids into the water to begin its voyage. The title of the symposium of which this issue of the Yearbook of New Zealand Jurisprudence at last provides a permanent record – Custom (which alludes to Popper who, with his intellectual genius tempered by exposure as a Jew to Open Society and its Enemies2 he argued that it is simply to ensure justice: that the strong do not bully the weak. That should be the function of the laws and institutions of the state. But as all of us know so well, it is never enough for minorities – even those to be protected and their culture promoted. They must take positive steps in their own and in the wider public interest. That truth is what the case was about. It is also, in my view, a major element both of the original Te . symposium, marking the release of the pre-publication draft of on CD to in 2012–13. 2 The Open Society and its Enemies: The Spell of Plato vi Yearbook of New Zealand Jurisprudence Vol 13 Schiller wrote “die Sprache ist der Spiegel einer Nation”: language is the mirror of a people. In 1985, appearing before the Waitangi Tribunal as it heard the 3 language dies, as some predict, what do we have left to us? Then, I ask our own people who are we? has been due to its accessibility in written form. The burgeoning of English has created a cultural neocolonialism more potent and long-lived than the British Empire which did so much to develop it, including the invasion of the Waikato. It is therefore wholly appropriate that, as a counter-attack to the cultural Compendium of should be pleased! While diminution of a language diminishes both the people and their culture, recounts the establishment of the Institute:4 to explore the possibilities for the evolution of laws and institutions in New of a cohesive New Zealand jurisprudence. Every day in my court we see the evidence of the social and economic But as those of us brought up in English-New Zealand law slowly unwrap our xenophobic jurisprudential mummy-casings we are coming to appreciate the truths of which the Compilers write in their inspirational Introduction. 3 (WAI 11, Waitangi Tribunal, Wellington, 1986) s 6.1.21. 4 “A Short History …”, this volume. 2010 Preface vii Muriwhenua courteously and patiently began to introduce me to the overriding of their culture by the European juggernaut, which had used monocultural laws for a millennium. Since then much has changed. So it was my privilege last year, chairing the Rules Committee, to introduce Rule 65A of the High Court of Judge Brown and later of Professor Frame, the Editorial Board consisting of Alex Frame, Richard Benton and Paul Meredith has been working on the Oxford Dictionary, includes the labour of others. But those others are not mere hoarders of information but backed up always by the great administrative support of Sue MacLeod. The For those of the Advisory Panel it has been an immense privilege and a delight both to meet the intellectual leaders of our society and to see something of the work in progress. One of our number has been of great assistance to the Team – Dame Joan Metge. their meaning and derivation. Instead the authors have applied the lesson in Jurisprudence”5 and by the New Zealander Professor Donald Harris QC in “The Concept of Possession in English Law”.6 Legal concepts cannot be now comes to our aid by providing for each entry its context, which at last Western jurists are coming to realise is critical to understanding any legal thing. That is the state of the art. 5 (1954) 70 LQR 37. 6 Anthony Guest (ed) Oxford Essays in Jurisprudence (Clarendon Press, Oxford, 1968) at 69. viii Yearbook of New Zealand Jurisprudence Vol 13 Paris, as well as in the British Museum and in other great galleries, are now acknowledged as a major contribution to world culture. In future scholars and general readers alike will be able, internationally, to add the wealth of information and erudition of this volume to their intellectual store. My Golden Bough in 1890 with its imagination. Lacking the capacity to express the sentiment in te Reo, I adopt 7 Then felt I like some watcher of the skies Or like stout Cortez, when with eagle eyes Silent, upon a peak in Darien. Even more important, in my view, is the message has for of refugees:8 Grant them removed, and grant that this your noise Imagine that you see the wretched strangers, Their babies at their backs and their poor luggage, used to lend emphasis to a recent immigration judgment. Like the role of great literature for the Western world, shows in New Zealand society is so crucial to its future and to theirs. 8 Sir Thomas More, Act II, Scene IV. (The play is ascribed in part to Shakespeare.) editor’s iNtroductioN The casual reader of this Yearbook could well imagine that they had entered Dr Tardus.