KEY POINTS:
When it comes to Maori customary law, judges are starting to unwind their "xenophobic" Western wrappings, one of their own believes.
High Court Justice David Baragwanath yesterday helped open Custom and the State, a law symposium at Tainui's Endowed College. The three-day symposium is looking at how customary
law fits into the country's common law.
Justice Baragwanath unveiled Te Matapunenga, a compendium of customary law - which its authors hope will help jurists properly come to grips with Maori concepts.
Justice Baragwanath has a long history working with Maori and 20 years ago was involved in the landmark Maori Council case to the Privy Council which put a caveat on state- owned assets for Treaty of Waitangi Settlements.
In his speech he said changes in jurists' understanding of Maori concepts was happening slowly.
"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 [in the compendium]. There are those of us who have been brought up in an exclusively Western tradition who need to learn the lesson of [an American judge] who said that all of us have prejudices. And the first job of a judge is to identify and put them aside."
He said there were some that had missed the mark understanding customary concepts, but they would now be aided because the compendium explained concepts by referencing it to examples.
Waikato University's Te Matahauriki institute director Alex Frame was the compendium's project leader, and people such as Justice Eddie Durie, Dame Joan Metge, Tainui scholar Dr Tui Adams and the Governor-General Anand Satyanand have also had a hand in the work. Mr Frame said customary law was already part of New Zealand's common law - ideas such as common ownership and manawhenua were examples.
The Ngati Apa case, which led to the contentious foreshore and seabed legislation, was another example where judges were faced with how Maori customary law dovetailed into law.
"People used to think New Zealand common law was just English common law, but they're quite wrong. Time and time again Dame Sian Ellias says in the Ngati Apa case that New Zealand's law has been modified by Maori customary law."
Former Prime Minister Jim Bolger and his Treaty negotiations minister Sir Douglas Graham also attended.
Sir Douglas said that during his time in office no one understood what customary law was.
"Not only was there a lack of understanding in the public but there was a chronic lack of understanding in Parliament as well."
