John Tamihere: Maori verdict should back a home-grown top court

Maori oppose the abolition of the Privy Council as our final court of appeal, right?

That's the perception - or misconception - you could easily be forgiven for holding from the vast amount of misinformation being promulgated on what Maori do or don't think about the matter.

It is a misconception I have heard echoed by various groups, Maori and Pakeha, and one that has gained a certain currency.

But it is by no means an accurate picture of what all Maori are thinking.

For a more accurate picture, it is useful to look at a nationwide survey of about 1000 Maori by polling company DigiPoll, conducted for the television programme Marae late last month.

That found Maori were fairly evenly divided on whether the Privy Council should be abolished as New Zealand's ultimate judicial body.

Of those polled, 28.8 per cent said the Privy Council should be scrapped, 39.9 per cent said it shouldn't, and 31.3 per cent said they didn't know.

The divided opinion illustrated by that poll might have swayed even more in favour of abolishing the Privy Council if it were not for the steady flow of "information" on what constitutes the views of Maori "leadership" - that Maori support keeping the Privy Council as our final court.

What is commonly held to be the opinion of "Maori" is the opinion of an elite few, representing an iwi-based perspective that is totally different to the opinions of the majority of Maori, who live in our cities.

The submission this week of the newly formed National Urban Maori Authority to the justice and electoral select committee considering the Supreme Court Bill suggests many Maori supported abolishing the right of final appeal to the Privy Council.

I make that claim on the basis of more than 10 years of involvement with urban Maori authorities, culminating in the formation of the national authority, and the fact that this organisation represents the more than 80 per cent of Maori who live outside their iwi areas, or who do not know, or choose not to be represented by, their iwi spokespeople.



When you look at the assumption that the Privy Council has been an important forum of judicial recourse for Maori, the record does not stack up.

The numbers of cases of significance to Maori heard by the Privy Council is not great - on my count they number 16.

They relate to land, the legal status of the Treaty of Waitangi, the fisheries settlement, and other issues of importance to Maori. Of the 16, 10 were dismissed, two were allowed in part, and four were allowed.

Of the two cases which had a significant impact on urban Maori, both concerning the allocation of fisheries resources, the Privy Council sent one case back to the High Court for further hearing, and upheld the majority decision of the Court of Appeal in the other.

Quite apart from the unhelpful outcome for urban Maori in both cases, it is a concern that the Privy Council was not able to make decisions because it didn't have enough information about New Zealand or tikanga Maori.

That's not just my view; it is one expressed by Privy Council judges on more than one occasion.

Take the comment of Lord Nicholls of Birkenhead that for some years, the Privy Council "has recognised the limitations on its role as an appellate tribunal in cases where the decision depends upon considerations of local public policy ... The courts of New Zealand are much better placed to assess the requirements of public interest in New Zealand."



It is not difficult to imagine the difficulties inherent in asking judges thousands of miles away in an entirely different culture and nation to determine what it means to be Maori in contemporary New Zealand.





Our own judges sitting in a New Zealand Supreme Court would be likely to have greater existing knowledge, or opportunity of gaining this knowledge.

I support the convention that at least one member of a New Zealand Supreme Court should be well-versed in tikanga Maori - and, thus, most likely, be of Maori descent.

This is not a question of special treatment or unfair advantage - it is merely a matter of common sense and pragmatism.

In a court that will increasingly be called upon as the ultimate arbiter of matters concerning Maori, it would be extremely helpful to have at least one member equipped with knowledge on things Maori.

A very pressing argument against the retention of the Privy Council is the high cost of taking a case there - about $700,000 in the experience of urban authorities. This puts appeals out of the reach of most Maori.

An argument of those in favour of retaining the Privy Council is that Maori see it as the means of direct access to their treaty partner, the Crown - represented by the Queen, with the Privy Council as her legal adviser.

This assertion may have had some resonance historically, but it does not stand up in present-day New Zealand, where the Government is to all intents and purposes the "Crown".

As treaty settlements become more frequent, and Maori organisations grow and change, the prospect of litigation also increases. I expect we will see not only more Maori v Crown cases, but also more involving Maori v Maori.

Therefore, our final court of appeal will be called on more often to determine matters relating to tikanga Maori.

The court best equipped to deal with these concerns, and to act as the best protection of the interests of urban Maori, is a New Zealand Supreme Court.

* John Tamihere is the Associate Minister of Maori Affairs.