Te Reo Māori objections

How readily is te reo or, more specifically, tikanga Māori, accepted in the courts of New Zealand? The approach of the courts to this issue may surprise you.

Māori has been an official language of New Zealand since 1987, following a Waitangi Tribunal report recommending that it be given that status. Te reo may be used in New Zealand courts, however advance notice must be given so that translation can be prearranged.

But what about karakia and mihi before proceedings commence? Anyone who has ever been to Māori Land Court or Waitangi Tribunal hearings will know that karakia and mihi are invariably used as a means to formally commence proceedings. However, other courts approach the matter quite differently.

In 2008, a company with Māori shareholders appealed a decision of the Tasman District Council to the Environment Court. There was consternation when, at a prehearing conference on the appeal, the chairman of the company rose to deliver a karakia and mihi. It was pointed out that he should have sought leave from the court, in writing, beforehand. This would have allowed other parties to comment on such a request (Tiakina Te Taiao Ltd v Tasman District Council).

In the Tiakina case there were some practical issues about karakia and mihi and timing in relation to the prehearing conferences where numerous cases are dealt with in a short space of time (as opposed to full hearings). But the key reason the court sought prior notice was because, although it was specifically required by the RMA to "recognise tikanga Māori where appropriate", "(1) The Environment Court is a secular Court. The Environment judges and commissioners are not required to make an affirmation to any deities. It is not a religious Court, like a Consistory Court or a Sharia Court"; and "(2) The court's overriding obligations are fairness and rationality especially when there are conflicts between cultural values."

That reasoning strikes me as odd because it appears to give little or no recognition of Māori protocol and values as a part of the usages of the country. The oath which judges take is as follows: "I, ..., swear that I will well and truly serve her Majesty, her heirs and successors, according to law, … and I will do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will. So help me God."

If te reo is one of the usages of New Zealand then it seems odd to treat it as alien and to consider that the free and fair conduct of the court would be affected by its casual use, without prior written request, and without other parties in court proceedings being able to comment on its use or not.

The Environment Court also raised a further complication. It pointed out that the court itself could choose to be present or not during karakia, and since it had three members at most sittings, some might choose to sit in and some might not.

The Environment Court's reasoning strikes me as odd because it appears to give little or no recognition of Māori protocol and values as a part of the usages of the country.

That issue landed Ken Mair of Whanganui in jail in 1995 for contempt of court when he insisted on saying a karakia in front of a judge who had insisted that if a karakia were to be given he (the judge) must not be present (Mair v District Court at Wanganui). Mr Mair insisted that the karakia would serve little purpose to the proceedings if the main player were not present.

Again, it seems to me that the suggestion that judges can insist on being present or not treats these aspects of Māori protocol as something other than ordinary usages of the land. It also misunderstands their basic intent, which is to provide the setting for what follows and a cloak of safety or affirmation around the proceedings.

As for the claim that the courts are not religious, that is true, but only to an extent. To any reasonably observant person, our courts are places in which Christian symbolism maintains a strong presence. Oaths are used in the taking of all evidence, most of them sworn to "Almighty God" on a Bible. The judges sit under a coat of arms dominated by a crown worn by the head of the Church of England, who is still believed to be the "source and fountain" of all justice in New Zealand. So an argument about who is being more or less religious or secular is not going to take us very far. Hence the wise reference to "usages" in the judicial oath.

You might think that, since the coat of arms also shows a Māori chief, a newcomer to the court would not be at all surprised if proceedings opened in a mixture of Māori and English without comment or leave being sought. And, of course, the karakia used almost invariably invokes the Christian God – just as the protocols of the court do.

He Whakaaro
Opinion
nā
TOM Bennion

Tom Bennion is a Wellington lawyer specialising in resource management and Māori land claim and Treaty issues. Formerly a solicitor at the Waitangi Tribunal, he is currently the editor of the Māori Law Review, a monthly review of law affecting Māori, established in 1993. He recently wrote a book, Making Sense of the Foreshore and Seabed.

Inside Issue 44

Holly's Got Spirit

Iwisphere

Marks Of An Ancestor

Return of Mo Tātou

Tāne Ora: recover the man

Artist Tai Kerekere

 

Issue #44 Published Sept 2009
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