Yearbook of New Zealand Jurisprudence Tūhonohono: Custom and State Volume 13 & 14 (combined) 2010 & 2011 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 NZ$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. 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ISSN No. 1174-4243 (Print) ISSN No. 2253-363X (Online) ISBN No. 978-1-927208-00-7 (Print) ISBN No. 978-1-927208-01-4 (Online) YEARBOOK OF NEW ZEALAND JURISPRUDENCE Volumes 13 & 14 (combined) 2010 & 2011 Contents FOREWORD Tūhonohono: CusTom and sTaTe – a symposium The Hon Sir Anand Satyanand i PREFACE Tūhonohono: CusTom and The sTaTe – CelebraTing The launCh OF Te MāTāpunenga The Hon Justice Sir David Baragwanath v EDITOR’S INTRODUCTION ix a shorT hisTory of Te māTāhauariki researCh insTiTuTe Dr Alex Frame, Wayne Rumbles and Dr Richard Benton 1 a few simple poinTs abouT CusTomary law and our legal sysTem Dr Alex Frame 20 sharing The baskeT: delivery opTions for Te māTāpunenga Wayne Rumbles 29 Te MāTāpunenga as a Compendium of The hisTory of ideas Dr Richard A Benton 38 early ConCepTions of The sTaTe in new Zealand Professor John Farrar 51 is CusTom ConservaTive? if so, is iT a sTrengTh or weakness? Helen Aikman QC 66 “iT’s in your bones!”: samoan CusTom and disCourses of CERTAINTY Dr Tamasailau Suaalii-Sauni 70 gender and CusTom in The souTh paCifiC Dr Claire Slatter 89 hawaiian CusTom in hawai‘i sTaTe law Melody Kapilialoha MacKenzie 112 CusTom and The formaTion of Tribal auThoriTies The Hon Justice Sir Edward Taihakurei Durie 152 legal Challenges aT The inTerfaCe of māori CusTom and sTaTe regulaTory sysTems: wāhi Tapu Dr Robert Joseph 160 “one law for all” – problems in applying māori CusTom law in A UNITARY STATE The Hon Justice Paul Heath 194 CusTom and The naTive land CourT Dr Grant Young 213 aCCess To CusTomary law: new Zealand issues The Hon Deputy Chief Judge Caren Fox 224 overview The sTaTus of CusTomary law: aChievemenTs and prospeCTs Dr Guy Powles 238 NOTES ON CONTRIBUTORS 254 FOREWORD Tūhonohono: CusTom and sTaTe – a symposium1 The hon sir anand saTyanand governor-general of new Zealand Elders of Tainui, Your Honours (Judges), Officials and Scholars of the University, Distinguished Guests, Ladies and Gentlemen, I greet you in the languages of the realm of New Zealand – English, Māori, Cook Island Māori, Niuean, Tokelauan and Sign Language. I stand before you today not only in the capacity of Governor-General, but also as a former member of the Te Mātāhauariki Research Institute Advisory Panel from 1997 to 2006. As such, I have amongst you many personal and professional friends. There is a connection between Te Mātāhauariki and Government House that bears mention. At the launch of Dr Alex Frame’s book 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. Tūhonohono, a linking together or bonding, is the central principle of this symposium. It describes the dual mandate of the symposium, which is first to present the Institute’s work, Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law, and secondly to discuss the place of Māori customary law in New Zealand. During my time with Te Mātāhauariki the Te Mātāpunenga project was devised and nurtured over time. It is a thrill to see it finished. It reflects the Institute’s objective to join the customary visions of Māori and Pākehā in a cohesive New Zealand jurisprudence. 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 Vols 13 & 14 The symposium is based on three themes, finding, understanding and applying custom. Each theme flows logically to the next, as one cannot apply or understand custom without first finding its location. However, as these three themes will be the subject of much discussion over the following days I would like to comment briefly on what I consider to be the importance of tikanga Māori to New Zealand in 2007. Where we have come from, as a nation, is important in determining the relevance of tikanga Māori today. As recipients of an English judicial system, we inherited English common law and legislation yet, even at an early stage, tikanga Māori was recognised. I quote Sir John Salmond in 1924 in reference 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 Māori has often been attributed to its dynamic nature and its ability to change. The disappearance of some practices – such as deliberate cursing – and the arrival of others – such as burial practices – is an example of the adaptability of tikanga Māori. In conjunction with this, a continual recognition and application of tikanga Māori by Judges in our courts has seen it survive and, if anything, gain 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 expressly requires consideration of it, for example the Resource Management Act. It is also applied in situations where customary law survives unaffected by any other subsequent legislation. This symposium will not only explore the origins of tikanga Māori but perhaps, more importantly, consider the future role it may play in our legal system. With the attendance of our Pacific neighbours, where native customary law is in many cases more prevalent, much can be learned both from their experiences and our own over the next two days. I would like to close by resonating a Māori proverb which I believe is reflective of the symposium’s purpose: Waiho i tetoipoto, kaua i tetoiroa “Let us keep close together, not far apart.” 2 Sir John Salmond Jurisprudence or the Theory of Law (7th ed, Stevens and Haynes, London, 1924) at 210, quoted in Alex Frame Grey and Iwikau: A Journey into Custom (Victoria University Press, Wellington, 2002) at 64. 2010 & 2011 Foreword iii I wish Tainui Endowed College and Te Mātāhauariki Research Institute all the best for the Tūhonohono: the State and Custom Symposium 2007. I began speaking in all the New Zealand realm languages. May I close by speaking in Māori issuing greetings and wishing you good health and fortitude in your endeavours. Nō reira, tēnā koutou, tēnā koutou, kia ora, kia kaha, tēnā koutou katoa. iv Yearbook of New Zealand Jurisprudence Vols 13 & 14 PREFACE Tūhonohono: CusTom and The sTaTe – CelebraTing The launCh of Te MāTāpunenga1 The hon JusTiCe sir david baragwanaTh 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 Mātāhauariki and looked to what we were sure would be its exciting future; the following Friday there was a further event to mark the 20th anniversary of the Māori Council case; that evening Te Mātāpunenga 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 Māori custom) and the State – took me to the sometime New Zealander Karl Popper who, with his intellectual genius tempered by exposure as a Jew to the injustice of Hitler, analysed the raison d’être of the state. In his celebrated 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 equipped with a solemn Treaty promise – to sit back and expect their rights 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 Māori Council case was about. It is also, in my view, a major element both of the original justification for Te Mātāhauariki and of its stunning vindication today in Te Mātāpunenga. 1 The edited text of a speech by Justice Baragwanath at the opening of the Tūhonohono symposium, marking the release of the pre-publication draft of Te Mātāpunenga on CD to all symposium participants.