Is the Supreme Court’s decision on tikanga an outlier or a harbinger?

The majority in the Ellis case asks and answers its own constitution-shaping questions

Courts have an important role in our system of government. They interpret the law, apply it and, sometimes, make new law through a process of incremental adaptation building on previous decisions. At least, that’s how it’s supposed to work. Sometimes courts depart from the script, taking it on themselves to make a pronouncement that goes further than they’re supposed to. The Supreme Court’s recent decision on tikanga is one of those times. It’s a sensitive and important subject, one that should be handled with care and in a constitutionally appropriate way to reach an enduring position on the relationship between tikanga and law. Even the most charitable reading of the Court’s judgment would struggle to discern anything other than a majority of judges not merely seeing, but creating, an opportunity to reshape the law according to their views. That’s a troubling result not only in this case and for this issue, but because it raises a wider question: is this a harbinger, a sign of things to come?

The Supreme Court of New Zealand

One of the most striking features of the case is that the Court itself inserted the issue of tikanga into the proceedings. The decision was part of the long-running series of cases involving Peter Ellis, who was convicted of sexual offending against children in 1993 but whose convictions were overturned on appeal by the Supreme Court last month. Ellis died before this final appeal could be heard, meaning the Supreme Court had to grapple with whether the “interests of justice” meant the appeal should die with him or should be allowed to continue. Ellis was not Māori nor, so far as anyone knew, were any of the other parties. The case was proceeding in the usual way until one of the judges suggested that counsel should make arguments about whether tikanga applied. The appeal was adjourned, the Court directed the lawyers to prepare submissions on the subject and specified what they should address, a wānanga was convened, and mātanga tikanga (experts in tikanga) produced an authoritative statement about tikanga, “the values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct.” Then the Supreme Court got to work.

The majority of three judges considered that tikanga should inform their decision and applied it directly to support continuation of the appeal. All judges agreed that tikanga is relevant to the development of the common law, but the majority went further. Glazebrook J declared that “tikanga as law is part of the common law of Aotearoa/New Zealand.” The common law has always recognised that custom that meets certain conditions (such as longevity and certainty) should be treated as law, but Winkelmann CJ concluded that these “colonial tests” are “inappropriate for the context of modern Aotearoa/New Zealand” and that tikanga should be operative in its own right. Williams J agreed, saying that the tests were grounded in “notions of (British) racial superiority” and concluding, somewhat cryptically, that “the development of a pluralist common law of Aotearoa is both necessary and inevitable”.

The minority of two judges disagreed, saying that this was not an appropriate case to make general and binding statements about tikanga. O’Regan and Arnold JJ noted that the lawyers had simply accepted that tikanga should be considered, so the Court hadn’t had the benefit of argument about the pros and cons. And, because the question had been prompted by the Supreme Court itself, the issue hadn’t been addressed in earlier proceedings in lower courts. The minority judges also pointed out that the Law Commission is currently considering this very issue of tikanga’s legal role, a process that would allow for public discussion and input. All this meant that “the tikanga issue has come before the Court in an uncontested environment and in circumstances where the Court has not had to address a number of difficult issues of both legal and constitutional significance.”

Those “difficult issues” received almost no treatment in the decisions apart from vague acknowledgements that “Western values” and tikanga may conflict.  For example, it’s clear from the majority’s decision that tikanga as common law will apply to everyone, Māori and non-Māori alike, just as it was applied to Ellis and the other parties. Is that right, when tikanga represents “norms that the Māori community subscribe to” and which may conflict with other communities’ norms? Courts are supposed to be the authoritative arbiters of the law, but the majority was explicit that courts are not competent to “pronounce on or develop the content of tikanga,” as “tikanga remains rooted in its own world.” Tikanga “is not fixed,” so who decides what it means and what it requires? Who do they represent, and who are they accountable to? Is it really true that the tests for recognising indigenous custom as law are mere “colonial relics” and grounded in “racial superiority,” or might there be at least some good reasons for them that we should consider, like the rule of law principle that we should be able to know what the law is if we’re to be held accountable to it?

Whatever you think of the decision’s merits and however you’d answer these questions, having unelected judges change the law at this scale is not a good idea. We recognise Parliament as our supreme law-maker because it has a democratic mandate and, with it, accountability to the people it wields power over. When significant, constitution-changing decisions need to be made, we put them through a full public debate, maybe even a referendum, so that we who will be governed can participate in determining the shape of that government. By contrast, judges who make law have public power without public accountability. If you want to know what that looks like, check out the immense social and political upheaval that roils around the US Supreme Court’s most controversial decisions.

Perhaps the most ironic feature of the case is that at least two of the judges who introduced tikanga into the equation didn’t even need it to reach their decision. Glazebrook J decided that the appeal should continue on ordinary common law principles before turning to tikanga. Williams J applied tikanga, but recorded that he would have supported continuation without it. This is what lawyers call obiter dicta, meaning “that which is said in passing”, a non-essential statement that therefore isn’t binding on future cases and doesn’t represent the law. Perhaps, as time passes, the majority decisions will be categorised clearly as obiter, deserving thoughtful consideration but not deference, and we’ll be able to have more appropriate conversations about the relationship between tikanga, law, and the peoples who call Aotearoa New Zealand home. And, I hope, the majority’s approach of asking and answering its own constitution-shaping questions will be an outlier, and not an ominous foretaste of things to come.