Readers are excused if they do not know what this means. That is because it is an entirely new system of law for New Zealand advocated by Justice Christian Whata our latest judicial appointment to the Court of Appeal. The fact that it is practiced nowhere else in any country which has a settled legal system does not concern its advocates. It appears to involve the merging of Maori tribal customs which were extant in New Zealand in 1840 with the Common Law which came to us when most of the tribes ceded sovereignty over New Zealand to the British Crown. The Common Law has worked well for the past 185 years and is a necessary companion to the colourblind Democracy which we have all enjoyed for most of that time. It has the merit of regulating the societies of most civilised countries in which the British Crown is or was accepted as the Sovereign. It is called common because it is written down and therefore knowable in advance and applies equally to all citizens irrespective of race class or status. It is that legal system which Justice Whata intends to destroy.
On a personal note. I knew Justice Whata when he was a litigation partner in a leading law firm. He appeared before a Panel of Commissioners which I chaired for an energy company seeking resource consent for a multi- million- dollar energy project. It was thought the case would take about 10 days given the number of objectors. In fact, it took in excess of 70 sitting weeks. Throughout that time Mr. Whata (as he then was) presented a professional well researched case and clearly understood those elements of resource management law applicable to the case. He was at all times courteous but compelling when required. He succeeded in his case both before the panel and on appeal to the Environment Court. It came as no surprise that sometime later he was appointed a Judge of the High Court. He must have impressed in that role also because he has now, with the stamp of approval of the Attorney General, been promoted to become a Judge of the Court of Appeal our second highest Court.
Given this impressive background it is with astonishment that one reads of his intention to ignore his judicial oath and lead the way in replacing our common law with his newly invented “bijural law.” What makes this intention the more concerning is that it will certainly meet with support and approval among some members of our Supreme Court, and if allowed to flourish will, given the ages of Justice Whata, Justice Williams (ex-Waitangi Tribunal) replace the common law as we know it.
What is Bijural law?
The project was launched at a meeting chaired by the Professor of Law at AUT Law School where he was welcomed by the Dean Kylee Quince. Readers will recall it was she who in response to Garry Judd KC’s submissions to the regulations Review Committee calling for the repeal of the Ardern Regulations making it compulsory to teach tikanga as part of all core law subjects. Her eloquent contribution to this debate was to call Mr. Judd unpleasant names and invited him to “go and die in a corner.” Justice Whata began his address by acknowledging that tikanga’s place in the law requires a “shared understanding of how tikanga is defined.” He chooses Sir Edward Durie’s definition of a “set of values, principles, understandings, practices, norms and mechanisms from which a person or community can determine the correct action in te ao Maori” (no translation offered). Justice Whata continues that this “requires a deep cognitive shift from the largely individualistic European approach to a holistic, collective sensibility that reflects and supports te ao Maori ways of thinking and being.” Pursuing this theme His Honour exhorts his audience to “unlock yourselves rather than placing yourself on the outside of the legal system looking in, begin within te ao Maori and then move out.” His Honour says that through his “deep interrogation and analysis of Aotearoa’s legal landscape” it came as an “epiphany” when he realised the “wonderful coherency of the two systems.” He concludes by saying that te ao Maori is a “beautiful normative framework that easily fits with the European legal system. The legitimacy is there – that is important.” M/s Quince in her eulogy following the address adds the telling observation: ”Justice Whata has delivered a masterpiece that is unlike anything in the world” (my emphasis about which more later).
What is Tikanga?
An answer to this question requires context be given to Sir Edward Durrie’s observations. The common law which Justice Whata wants to infuse with tikanga arrived here in 1840 with the acceptance by some tribes of the Sovereignty of the British Crown over the lands and peoples of New Zealand. It has remained our legal system down to the present time. This was not an agreement to accept British sovereignty in place of a domestic sovereignty because there was no such concept known to the Maori tribes at that time. Each tribe existed as a separate entity located on the lands it had settled or sized from a neighbour. There can be no doubt that within those boundaries the inhabitants developed practices and rules which as in any society enabled the tribe to exist and survive. Of necessity given the separation of the tribes and their geographic locations these practices will have varied. It is impossible to say now by what extent because the tribes had no written language, and our knowledge comes solely from folk memories. Sociologists call such practices “mores” or customary lore but beyond doubt they are not law as is known throughout all civilised societies, added to which the same mores were never “common” to all of the inhabitants at any given time. It is this mix of practices and beliefs that Justice Whata wishes to introduce as a legal system having equal status with the Common Law. If this is to happen then a number of questions arise. Is it all known tikanga practices which are to become part of our law? Cannibalism, trade in shrunken heads, slavery, revenge killings, the place of women in society, do they qualify? David Parker MP who commented on the bijural proposal assumed that not all tikanga practices could be introduced into the common law, but the question arises why not and who decides. Will our criminal legal code need substantial revision? Shorn of the violent tikanga practices are we left with just the more spiritual and harmless practices such as: when and where to fish, when to dance and sing, who gets to make the oration on the marae, how one tribe greets another entering its lands, assuming it is not at the point of a spear, is placating taniwhas- popular in resource management cases to become a valid legal consideration. Does a knowledge of the stars assist in deciding whether or not somebody has committed a crime or should be held to a contract. If those are the sorts of practices which Justice Whata has in mind how can any of it contribute to the understanding and practice of law in twentieth century New Zealand. Then there is the insuperable problem of how pre 1840 tribal customs can have any relevance to the solving of disputes in our increasingly complex society dealing as it does with social interactions utterly foreign to pre 1840 Maori society. Readers will be able to recall their own recourse to the law in solving their problems and disputes and to reflect on how practices from another society and another age could have had any relevance to them. It does nothing to explain these problems to describe a merging of Tikanga and the Common Law as a “beautiful normative framework.” The insuperable problem for anybody having recourse to the legal system remains: where does one find these tikanga rules and how are they to be applied in litigation which may or may not involve persons of Maori heritage, for it is clear that bijuralism will apply to maori and non maori alike.
Conclusion.
M/s Quince is quite correct, the Whata proposal is “unlike anything in the world” for the simple reason that it is utterly illogical, untenable and devoid of any reasoned argument. There are many countries where European practices – Spanish, Portuguese, Dutch, English – were imposed on existing native customs but in none of them has there ever been a suggestion of a “bijural” legal system involving the melding of the native customs with the laws imposed by the colonisers. This is particularly true of those countries which did not have a written language, few as they may have been. Justice Whata’s proposal does not acquire credibility by dressing it in flowery language. It is and remains untenable.
That said the concern is that our Superior Courts now contain a number of Judges who have shown a ready acceptance of infusing the Common Law with the notion of tikanga. In the Supreme Court these include: The Chief Justice, Justice Glazebrook, and Justice Williams, (ex-Waitangi Tribunal.) Added to which in a number of cases the silent majority on the Court has raised no objection to the introduction of Tikanga. That was not always so. In the Ellis case two of the Justices dissented and refused to countenance any reference to tikanga as being part of our law. In the Court of Appeal, the known sympathisers are two of the judges who decided the foreshore and seabed case invoking tikanga and ignoring the plain wording of the statute. Justice Palmer who recently delivered himself of a lengthy disquisition on tikanga in a judgment and concluded by referring the dispute back to the parties for them to solve themselves. Now we have Justice Whata not only an advocate of tikanga but seeking to use it to develop his bijural system of law. If this is allowed to continue and if Parliament does not repeal the regulations requiring the insertion of tikanga in most law subjects, then litigation will become a lottery with the prize going to the most imaginative tikanga educated counsel.
It requires no conspiracy theorising to see this as part of the wider drive to dismantle a pillar of our democracy and impose the pernicious Ardern He Puapua construct in which a small group of activist Maoris seek to impose their wishes on the public with the long-term goal of taking over the governance of New Zealand. The rot is now too deeply imbedded in our politics and in the law. To continue hoping, as do some of our political leaders, that it will go away, and commonsense and equal rights will prevail is utterly misguided. They will not. The long march of a revived Marxism through our institutions both here and in the rest of the Anglosphere involving the embedding of such lucrative nonsense as “global warming”, “black lives matter”, “diversity”, and the rest of the woke capture is alive and well in New Zealand. If any reader doubts that, try having an intelligent fact-based discussion with any of your university educated forty- or fifty-year-old children on any of these and related topics, indoctrinated as they were at school and university and a one-eyed media. The recent American Presidential election looks set to reverse this tide in much of the Anglosphere, but we are not so fortunate here. We have the added spectre of blatant racism, by which a tiny minority of maori activists and academics are seeking to destroy our democracy and to govern in place of the people. The notion of a bijural system of law is a crucial part of that crusade because democracy cannot survive without the Rule of Law.
What can be done?
The Coalition will be required to take some hard decisions this year to arrest this insidious drift to race based autocracy. These must include ensuring the Marine and Coastal Area legislation serves its original intent, promising a referendum at the next election on the abolition of race-based seats in Parliament, legislating that spiritual and cultural practices of whatever origin including tikanga form no part of the law of New Zealand. This in addition to the Coalition’s stated intention of removing all references to “treaty principles” from existing legislation. Failure to take these steps will ensure that the long march to Maori autocracy will continue, resulting in the loss of our children’s right to live in a democracy governed by a colour-blind Parliament and protected by the Rule of Law.
A final word
Judges are appointed to interpret the law as determined by Parliament and by the application of the doctrine of precedent and apply it to the facts of the case before them. They are not free to make it up to suit their own beliefs and views. It is beyond imagining that any Judge should attempt to abandon the legal system they have sworn to uphold and, in its place, design a radically different system of law as Justice Whata is attempting to do.