I can remember feeling a frisson of disquiet when the Ellis decision came out and wondering how on earth tikanga could be bought into law. That was in 2011 before there was general understanding of the takeover of all our institutions by the devotees of Critical Theory/post-modernism. You say: "The more weight courts place on fluid, localised, predominantly oral tikanga, the more difficult it becomes to maintain the certainty and predictability that are hallmarks of the rule of law. If tikanga can mean different things in different contexts, and if judges must navigate spiritual and cultural concepts without a stable written framework, the risk of inconsistency and contestation is obvious." I think we're doomed to be at the mercy of fickle and arbitrary idealogues. It reminds me of, I think, John Tamahere, saying 'tikanga means what I say it means'.
Who was it who said perception is reality. Descartes? I prefer Richard OBrien - life is an illusion and reality is a figment of our imagination - Rocky Horror Show
Agree. At the time of the Ellis case I thought, and still do, that he wasn’t guilty and so was pleased to have his name cleared for his family’s sake. But that’s different from using a particular spiritual concept of deathless mana to justify it. The precedent concerned me then and still does.
Thanks for publishing this on Substack! I'm still trying to wrap my head around whether Tikanga is, or should be, considered as the 'first law' in New Zealand. It is very helpful to read your detailed analysis of how Judges and legal scholars have interpreted Tikanga over the last several years!
For me, when I was being denied my rights under Disabilities legislation while seeking medical treatment from 2020 - 2022, it was dehumanising and humiliating to have to make arguments based in Tikanga. I had tried to stick to arguments based in Science, common law, and existing legislation (even reading my legal rights off the handy posters in the hospital in both English and Te Reo Maori), but was ignored and told that those rights didn't apply in my case.
In some cases, health professionals even laughed at me for stubbornly insisting that I had those rights, and that the health system was meant to accord me those rights. However, when I started making arguments based in my spiritual beliefs, and how these could be seen as a form of Tikanga, I was taken much more seriously by the health system. At this point, once they accepted that my spiritual beliefs were in fact a form of Tikanga, I was finally treated with the respect that the Disabilities Act should already have enabled me to be treated with from the beginning of my treatment.
A very good analysis thank you Dr Halfling. Your good and wise mate Gary has written on this considerably and pretty much also concluded that tikanga was not our 'first law', and nor does it qualify as 'law' in the English sense.
Palmer 's reference to tikanga: "continued to operate in areas where colonial institutions did not reach" is worth noting. Sure, customary fishing (using canoes and bones, not GPS fish finders) might fit into this. But there ain't much else that goes on in NZ where 'colonial institutions' do not reach. Ergo, tikanga has been replaced by our most pervasive Westminster system. Which strangely seem to echo exactly what the Treaty intended. How else would tribes be protected other than by British 'law'? Tikanga would have seen Utu prevail as preferred method of settling grievances. (Ironic also that TPM chose to fight their internal battle through the 'Court' rather than on the pa slopes...)
I ain't an especially smart man, nor am I a lawyer, but this judicial activism is total bullshit. It is creative sophistry and most certainly is not arguable from any position of reason or logic.
When I was a columnist for the Sunday Star-Times several years ago, I wrote this, much to the horror of my more righty mates. Naturally it's nowhere near as erudite as yours, David.
With respect, I’m not sure I’d be telling anyone if I had written that Stuff piece ma’am. It was an absolute shocker. But free speech gives you that right I guess…
Boris I don’t need your ‘respect’; I’ve been writing for the public for more than 50 years so I’m thick skinned. But it would help if you offered analytical criticism as opposed to a hyperbolic outburst. The Bondi massacre was a shocker. This was just one of millions of mediocre columns written every day by workhorse journalists.
Ok, fair enough request. (Although Mr Judd has already provided some pretty sound reasoning - https://substack.com/home/post/p-135731684 being just one of his excellent opinions on this.)
Your Stuff article used the ol’ Racist Willy argument 'What's to fear about that?[tikanga]'. Well, quite a lot actually. I will try to be brief although the reasons against incorporating tikanga into any part of modern-day NZ are myriad.
1. Fundamental to our system of democracy, and law, are several things wholly incompatible with 'tikanga'. Parliamentary Sovereignty, Rule of Law (including legal certainty & equality), separation of powers etc do not work under 'tikanga'. Existing laws, applicable to us all, can be twisted to suit. Read Hikuwai v Ministry of Fisheries (High Court, 1999) to see how bullshit is tried on under the guise of ‘tikanga’. (‘It was just koha bro…’) Or just reflect on how corruption and nepotism is often defended under ‘tikanga’.
2. The Common Law has evolved over millennia to try and keep pace with society. Tikanga has not. How would it deal with say, tax law or M&A? Although I am sure it would poke its nose in if it suited (like Mike Chainsaw Smith tried to do).
3. What is tikanga? Who knows? Nobody can tell me. Not a great basis for society I would aver.
4. You wrote “both Māori and Pākehā stand to benefit from further advancement of tikanga.” Why do we need it? If there is something missing in Common Law, it can adapt like it always has. This veneration of ‘noble savages’ and their dysfunctional worldview seems rather odd to me. I get by quite fine without tikanga, as do most folk.
5. Collective vs Individual rights & responsibilities: A significant conflict between Maori & European worldviews.
6. Animism & spirituality: Tikanga is based on a sacralised worldview. In smart cultures, that went out of style, oh about 5,000 years ago. How would it work with tikanga? Already we have the crazy inclusion of Te Ao Maori into ‘pretty much everything’. It adds no value, rather it distorts reality and is at odds with science and logic. We may feel like ‘flies to wanton boys’ in philosophical reflection, but living under animism puts everything at the whim of the spirits (eg the ‘imposition’ of rahui).
Your article admitted the lack of certainty with ‘tikanga’, finding a safe-haven with ‘it is about putting things right’. Like the existing Law doesn’t try to do that? Your intro lamented that Maori were ‘never consulted’ on matters ‘back in the day’, but the reality is that when a vastly superior culture meets a vastly inferior one, well, say no more. Maori did very well though through colonisation and most were happy to be freed from the enslavement of ‘tikanga’ which included Utu as the norm and empowered Tohunga. The Ratana Church and those who supported the Tohunga Suppression Act (1907) couldn’t run from said’ tikanga’ fast enough.
The reality is that ‘tikanga’ will be exploited by certain ‘Maori’ for their own purposes. This is in stark contrast with wise Judges of history. Lord Denning would be turning in his grave at the concept of any tribal legal system based on pagan religious beliefs. As per an excellent Spectator article I read today: ‘Civilisations endure when they recognise existential challenges in time and act accordingly.’ The introduction of Tikanga & Te Ao Maori is one of those challenges. Ergo, your article, ‘mediocre’ by your own admission, was for me quite ‘a shocker’.
I meant the ‘with respect’ comment however. You are a very intelligent woman and I have agreed with much of what you have written over the years. Just not this. Not even close. But I wish you a very Merry Christmas regardless of our difference of opinion and I apologise for not providing a more coherent criticism in my earlier post.
Thank you Boris. Yes Gary was predominantly a specialist in tax (eg the notorious Russell) & trust law But I feel he won’t think laterally. Eg, customary law, beliefs, faiths if you like, do become laws in secular societies - thou shalt not kill, thou shalt not steal, covet thy neighbour’s wife ( ie bigamy) ….
I could go on and on but I’m in between long haul flights, via Sth America, destination Antarctica, tapping this out on one finger on my iphone like a granny so I’ll agree to disagree with you, say Feliz Navidad, Happy New Year, & will tease you one more time to say I return to Aotearoa in 2026 🥂😉
H. L. A. Hart famously argued that a system of law is not just a set of customary practices ("primary rules") but also a set of "secondary rules" which indicate how the primary rules are to be ascertained, enforced, interpreted, and changed. By this standard, would tikanga count as a system of law? I've only once seen this question addressed, by Māmari Stephens, who argues that tikanga did have practices that were equivalent to such secondary rules. She offered a good argument, but in the end I myself didn't find it convincing.
I can remember feeling a frisson of disquiet when the Ellis decision came out and wondering how on earth tikanga could be bought into law. That was in 2011 before there was general understanding of the takeover of all our institutions by the devotees of Critical Theory/post-modernism. You say: "The more weight courts place on fluid, localised, predominantly oral tikanga, the more difficult it becomes to maintain the certainty and predictability that are hallmarks of the rule of law. If tikanga can mean different things in different contexts, and if judges must navigate spiritual and cultural concepts without a stable written framework, the risk of inconsistency and contestation is obvious." I think we're doomed to be at the mercy of fickle and arbitrary idealogues. It reminds me of, I think, John Tamahere, saying 'tikanga means what I say it means'.
Thanks Aroha.
Who was it who said perception is reality. Descartes? I prefer Richard OBrien - life is an illusion and reality is a figment of our imagination - Rocky Horror Show
Or was it Kant? Brain is going to mush.
Agree. At the time of the Ellis case I thought, and still do, that he wasn’t guilty and so was pleased to have his name cleared for his family’s sake. But that’s different from using a particular spiritual concept of deathless mana to justify it. The precedent concerned me then and still does.
Wow David!
Surely this needs to be addressed - by Govt?
How can we eliminate Critical Theory etc from the Justice System?
Thanks for publishing this on Substack! I'm still trying to wrap my head around whether Tikanga is, or should be, considered as the 'first law' in New Zealand. It is very helpful to read your detailed analysis of how Judges and legal scholars have interpreted Tikanga over the last several years!
For me, when I was being denied my rights under Disabilities legislation while seeking medical treatment from 2020 - 2022, it was dehumanising and humiliating to have to make arguments based in Tikanga. I had tried to stick to arguments based in Science, common law, and existing legislation (even reading my legal rights off the handy posters in the hospital in both English and Te Reo Maori), but was ignored and told that those rights didn't apply in my case.
In some cases, health professionals even laughed at me for stubbornly insisting that I had those rights, and that the health system was meant to accord me those rights. However, when I started making arguments based in my spiritual beliefs, and how these could be seen as a form of Tikanga, I was taken much more seriously by the health system. At this point, once they accepted that my spiritual beliefs were in fact a form of Tikanga, I was finally treated with the respect that the Disabilities Act should already have enabled me to be treated with from the beginning of my treatment.
A very good analysis thank you Dr Halfling. Your good and wise mate Gary has written on this considerably and pretty much also concluded that tikanga was not our 'first law', and nor does it qualify as 'law' in the English sense.
Palmer 's reference to tikanga: "continued to operate in areas where colonial institutions did not reach" is worth noting. Sure, customary fishing (using canoes and bones, not GPS fish finders) might fit into this. But there ain't much else that goes on in NZ where 'colonial institutions' do not reach. Ergo, tikanga has been replaced by our most pervasive Westminster system. Which strangely seem to echo exactly what the Treaty intended. How else would tribes be protected other than by British 'law'? Tikanga would have seen Utu prevail as preferred method of settling grievances. (Ironic also that TPM chose to fight their internal battle through the 'Court' rather than on the pa slopes...)
I ain't an especially smart man, nor am I a lawyer, but this judicial activism is total bullshit. It is creative sophistry and most certainly is not arguable from any position of reason or logic.
When I was a columnist for the Sunday Star-Times several years ago, I wrote this, much to the horror of my more righty mates. Naturally it's nowhere near as erudite as yours, David.
https://www.stuff.co.nz/national/crime/300716788/time-to-take-stock-and-admit-tikanga-its-rightful-role-in-nz
Hi Deborah
My problem is in the way that the outcome was reached. And that path is one that defies logic and reason. And First Law - that is simply a construct.
I have had little reaction from the Law News piece. The response here is interesting. So far being strung up from a lamp post isn’t suggested - yet.
With respect, I’m not sure I’d be telling anyone if I had written that Stuff piece ma’am. It was an absolute shocker. But free speech gives you that right I guess…
Boris I don’t need your ‘respect’; I’ve been writing for the public for more than 50 years so I’m thick skinned. But it would help if you offered analytical criticism as opposed to a hyperbolic outburst. The Bondi massacre was a shocker. This was just one of millions of mediocre columns written every day by workhorse journalists.
Ok, fair enough request. (Although Mr Judd has already provided some pretty sound reasoning - https://substack.com/home/post/p-135731684 being just one of his excellent opinions on this.)
Your Stuff article used the ol’ Racist Willy argument 'What's to fear about that?[tikanga]'. Well, quite a lot actually. I will try to be brief although the reasons against incorporating tikanga into any part of modern-day NZ are myriad.
1. Fundamental to our system of democracy, and law, are several things wholly incompatible with 'tikanga'. Parliamentary Sovereignty, Rule of Law (including legal certainty & equality), separation of powers etc do not work under 'tikanga'. Existing laws, applicable to us all, can be twisted to suit. Read Hikuwai v Ministry of Fisheries (High Court, 1999) to see how bullshit is tried on under the guise of ‘tikanga’. (‘It was just koha bro…’) Or just reflect on how corruption and nepotism is often defended under ‘tikanga’.
2. The Common Law has evolved over millennia to try and keep pace with society. Tikanga has not. How would it deal with say, tax law or M&A? Although I am sure it would poke its nose in if it suited (like Mike Chainsaw Smith tried to do).
3. What is tikanga? Who knows? Nobody can tell me. Not a great basis for society I would aver.
4. You wrote “both Māori and Pākehā stand to benefit from further advancement of tikanga.” Why do we need it? If there is something missing in Common Law, it can adapt like it always has. This veneration of ‘noble savages’ and their dysfunctional worldview seems rather odd to me. I get by quite fine without tikanga, as do most folk.
5. Collective vs Individual rights & responsibilities: A significant conflict between Maori & European worldviews.
6. Animism & spirituality: Tikanga is based on a sacralised worldview. In smart cultures, that went out of style, oh about 5,000 years ago. How would it work with tikanga? Already we have the crazy inclusion of Te Ao Maori into ‘pretty much everything’. It adds no value, rather it distorts reality and is at odds with science and logic. We may feel like ‘flies to wanton boys’ in philosophical reflection, but living under animism puts everything at the whim of the spirits (eg the ‘imposition’ of rahui).
Your article admitted the lack of certainty with ‘tikanga’, finding a safe-haven with ‘it is about putting things right’. Like the existing Law doesn’t try to do that? Your intro lamented that Maori were ‘never consulted’ on matters ‘back in the day’, but the reality is that when a vastly superior culture meets a vastly inferior one, well, say no more. Maori did very well though through colonisation and most were happy to be freed from the enslavement of ‘tikanga’ which included Utu as the norm and empowered Tohunga. The Ratana Church and those who supported the Tohunga Suppression Act (1907) couldn’t run from said’ tikanga’ fast enough.
The reality is that ‘tikanga’ will be exploited by certain ‘Maori’ for their own purposes. This is in stark contrast with wise Judges of history. Lord Denning would be turning in his grave at the concept of any tribal legal system based on pagan religious beliefs. As per an excellent Spectator article I read today: ‘Civilisations endure when they recognise existential challenges in time and act accordingly.’ The introduction of Tikanga & Te Ao Maori is one of those challenges. Ergo, your article, ‘mediocre’ by your own admission, was for me quite ‘a shocker’.
I meant the ‘with respect’ comment however. You are a very intelligent woman and I have agreed with much of what you have written over the years. Just not this. Not even close. But I wish you a very Merry Christmas regardless of our difference of opinion and I apologise for not providing a more coherent criticism in my earlier post.
Thank you Boris. Yes Gary was predominantly a specialist in tax (eg the notorious Russell) & trust law But I feel he won’t think laterally. Eg, customary law, beliefs, faiths if you like, do become laws in secular societies - thou shalt not kill, thou shalt not steal, covet thy neighbour’s wife ( ie bigamy) ….
I could go on and on but I’m in between long haul flights, via Sth America, destination Antarctica, tapping this out on one finger on my iphone like a granny so I’ll agree to disagree with you, say Feliz Navidad, Happy New Year, & will tease you one more time to say I return to Aotearoa in 2026 🥂😉
I assume your 'shalt nots' also applied to the coveting... 😉
and if you look for return flights to 'Aotearoa' you may be a long time finding your way home. Just saying.
But safe travels, sounds like a very exciting trip!
H. L. A. Hart famously argued that a system of law is not just a set of customary practices ("primary rules") but also a set of "secondary rules" which indicate how the primary rules are to be ascertained, enforced, interpreted, and changed. By this standard, would tikanga count as a system of law? I've only once seen this question addressed, by Māmari Stephens, who argues that tikanga did have practices that were equivalent to such secondary rules. She offered a good argument, but in the end I myself didn't find it convincing.
Divide an conquer is the hushed call from the radical activist elites.