Focus: Ellis lawyers and family friend speak post appeal. Video / NZ Herald
Opinion by Kingi Snelgar
OPINION
Leading Māori jurists like Dr Moana Jackson and Ani Mikaere have rightly referred to tikanga Māori as this country's first law.
Tikanga was here before Captain Cook arrived and before te Tiriti o Waitangi was signed in 1840.
It is a system of laws that is unique to ourcountry and continues to this day.
It may not be as visible to all as it was, but any visit to a marae would tell you that Māori culture is alive and well. Nowhere else in the world do we have tikanga Māori.
Like many, I read with surprise the analysis of the Peter Ellis case as the usurption of the development of tikanga Māori in Aotearoa.
On the contrary, the use of tikanga Māori in the Ellis case was neither audacious nor inappropriate. Rather, the court recognised what many around the country already know: tikanga Māori is an intrinsic part of our country, and it is right to be reflected in how our law develops. Indeed, it has always been here, and the court only endorsed what has existed for more than 1000 years.
The Peter Ellis Supreme Court decision mean tikanga must be considered in law. Photo / NZME
In using tikanga Māori, the Supreme Court has used the existing legal traditions of this land to assist with whether a case could continue after the death of the appellant.
Many of us would be surprised to hear that for much of our history, we've largely ignored tikanga and used common law from England in how we resolve legal issues.
New Zealand is a very different place to England and as we mature, it is only right that we turn inwards for assistance. We embrace Māori culture through powhiri for visiting dignatories, the All Blacks and other national sporting teams performing haka, and there is greater use of Māori language across nearly all settings: from the boardroom to television and in our schools.
Those who are engaged with Māori culture are not exclusively Māori but are all of us.
This engagement with Māori culture is going to increase for our children and grandchildren.
Māori lawyer Kingi Snelgar says tikanga must be part of our law. Photo / Supplied
It is probably rare now for a family in Aotearoa to not have some Māori whakapapa in it.
Many of my Pakeha colleagues talk with pride about how their children are learning waiata Māori or delivering mihi at their schools.
Our culture will be more visible over the next generations as many iwi and hapu grow in commercial influence. There will undoubtedly be disputes and when they occur, I imagine tikanga to play a big part in how they are resolved.
Limiting the use of tikanga to "Māori" issues would be wrong.
If we see our common law as a reflection of our values then it is inevitable that more and more tikanga Māori will form part of decisions in the future.
In accepting the case could continue, the court recognised the statement on tikanga prepared following a wananga by the eminent experts like Sir Pou Temara and Sir Hirini Moko Mead.
It would be a brave person to suggest that those Māori experts were wrong and I have jokingly suggested that those who have an issue take it up with them.
Holding such wananga will not always be practicable and I recognise there is a fear about how tikanga may be used in the future. Indeed, those concerns were reflected by the experts in the statement produced from the wananga.
This fear is real as we know for example the Māori Land Court in the late 1800s was a key institute in colonisation. And unlike other cases, there was agreement between the Crown and the Peter Ellis legal team about holding a wananga and deferring to the experts on tikanga.
What if there is a dispute between the parties about the relevance of tikanga? Who will be deciding what it means?
How do we protect the mana motuhake of our cultural traditions and ensure it does not become misappropriated?
What about the many Māori who are not connected to their whakapapa? These are all important questions to grapple with to ensure our cultural traditions are respected.
The elephant in the room in these developments is the fear and racism that exists about Maori culture.
Whether it is common law, co-governance or Three Waters, I would suggest that there exists an unconscious bias towards greater recognition of Māori culture.
We need get comfortable with recognising that this exists.
I recently saw a picture of a pou outside of prison and thought this was an excellent metaphor in the comfort level for Māori culture and more generally about the status of te Tiriti. We are okay with Māori culture being a pou outside but not with it entering the substance of any decisions or processes.
In the same way that we are comfortable with Māori conducting karakia to open a meeting or a mihi to open an event but then play no substantive role in the gathering.
What I am saying is that we should guard against only tokenistic or selective use of tikanga Māori based on our comfort level.
As te Tiriti partners, Māori are not ceremonial partners.
For those that might see the development of common law to greater recognise our legal traditions as concerning, the common law is merely readying ourselves for a future where Māori culture is not only used for ceremonial purposes but is honoured and reflected as a key part of the legal system.
Kingi Snelgar (Ngāpuhi, Ngāti Whakaue, Te Whakatōhea and Ngāi Tahu) is an experienced litigator. He has appeared before the District Court, High Court, Court of Appeal and Supreme Court.
