Tansi Nîtôtemtik,
Over the last couple of weeks, the blog has been focusing on the operation and revitalization of Indigenous laws and examining the topic of legal pluralism. Today, I want to extend that discussion by taking Reconcili-ACTION YEG on the move, focusing our attention on a recent case in New Zealand. In R v. Ellis [2022] NZSC 113, New Zealand's highest court took it upon itself to use the principles of Māori Law, called Tikanga, in making their decision.
This case is interesting for various reasons, with one being that this was an appeal of a criminal conviction of a non-Indigenous person where the decision is informed by Indigenous legal principles. Peter Ellis is a New Zealander of European descent (a Pakeha) convicted of sixteen counts of sexual offences against children, none of whom appear to be Māori. Mr. Ellis filed two appeals in the 90s, and both were dismissed by the Court of Appeal. In 2019, the Supreme Court of New Zealand (“NZSC”) granted leave to appeal, which is interesting because he had already served his complete sentence, but Mr. Ellis was motivated to clear his name and reputation. Unfortunately, shortly after the leave was granted, Mr. Ellis passed away.
The issue at the NZSC was whether the appeal could proceed, despite Mr. Ellis's death. In the majority decision, Judges Winklemann, Glazebrook, and Williams relied on Tikanga Māori in making their decision. The Supreme Court analyzed how the common law incorporates customary law and concluded that, in New Zealand, Māori Law not only informs but is a part of the common law.[1]
Justice Glazebrook writes that Tikanga provided valuable insight into deciding if the appeal should proceed in such circumstances because “Tikanga is comprised of both practices and principles, and includes values, standards, and norms” and that it is the first law of New Zealand.”[2] She states that an analysis of Tikanga can reveal the cultural and social frameworks of New Zealand and can indicate how and why the common law has developed; all of which can provide valuable insight into a legal issue.[3]Importantly, she states that Māori Law is New Zealand law and “that, in this case, it provides important values and perspectives for developing and modifying the common law.”[4]
She also cautions that there are risks in judges applying Tikanga, which could result in “adapting and expounding Tikanga from those whose responsibility it has been since time beyond memory,” which could ultimately result in distorting it.[5] Furthermore, she stressed that the common law in New Zealand is in a state of transition regarding the inclusion of Tikanga.
Chief Justice Winkelmann echoed Justice Glazebrook’s decision, writing that when there is a gap in the law, judges have always formulated laws by considering the underlying principles and values, both legal and societal. She stressed that Indigenous laws are both “social and legal in nature” and are a source of “regulatory principles.”[6] Similar to common law, Tikanga draws on historical precedents.[7] But unlike the common law, Tikanga draws those precedents not from court records but from the people, community and relations that frame the Māori world.[8] Importantly, she recognizes that “Tikanga is not fixed, but changes and evolves across time, to meet new situations.” [9]
It is really interesting to see how countries like New Zealand have progressed beyond the debates about whether there is ‘space’ for Indigenous law and now have their top courts recognizing Indigenous law as a fundamental piece of the legal framework and drawing on Indigenous law principles to help develop and progress the common law. As discussed in this decision, it is common practice for judges, when examining a legal issue, to explore principles from other areas of law, such as statutes, international instruments, and legal writing but also to explore law from other jurisdictions. I hope that Canada is taking notes on developments in New Zealand and that one day in the near future, we too, will recognize the first laws of these lands.
Until next time,
Team Reconcili-ACTION YEG
[1] R v. Ellis [2022] NZSC 113 at para 110 [Ellis]. [2] Ibid. [3] Ibid at para 119. [4] H. W Roger Townshend, “Recent Developments in Aboriginal Law,” Lexpert (1 March 2023),: online: https://www.lexpert.ca/legal-insights/recent-developments-in-aboriginal-law/373904 [5] Ellis, supra note 1 at para 120. [6] Ibid, at para 169. [7] Ibid. [8] Ibid. [9] Ibid, at para 170.