DIRECTOR’S COLUMN – OBSERVATIONS ON A VISIT TO AOTEAROA:
INCORPORATING INDIGENOUS CUSTOM INTO EXISTING LEGAL FRAMEWORKS
by Melody Kapilialoha MacKenzie Director


Welina nui ‘oukou e nā hoa makamaka!

In June, I was honored to attend and participate in a Symposium entitled Tūhonohono: State and Custom in Aotearoa-New Zealand and want to share with you some of my observations and thoughts from that visit.

First, a little about the Symposium sponsors - Te Mātāhauariki Research Institute at the University of Waikato and Tainui Endowed College. Te Mātāhauariki means the imminent dawn and in 1997 at the Institute’s inception, this title reflected the optimistic objective of joining customary laws and principles of Māori and Pākehā (European or non-Māori) societies in a cohesive Aotearoa-New Zealand jurisprudence. A key concept underlying Te Mātāhauariki’s research has been that existing law requires the adoption of Māori customary law into common law. Since little information was readily available on Māori customary law, Te Mātāhauariki began to put together a compendium, based mainly on authoritative primary sources, of references to the concepts and institutions of Māori customary law. The Symposium celebrated the completion of that project and the pre-release in CD format of Te Mātāpunenga: A Compendium of the References to the Concepts and Institutions of Maori Customary Law.

Tainui Endowed College, founded in 2000 at Hopuhopu, was the site of the Symposium and is also the meeting place of the governing body of the Waikato Iwi or tribe. Waikato is one of the four tribes that trace their lineage to the voyaging waka or canoe, Tainui. A mo‘olelo tells us that Tainui was the name of an infant who died at childbirth. A majestic tree that grew at the child’s burial site was used to build the voyaging waka or canoe, Tainui. Led by the chief Hoturoa, Tainui was one of the migratory waka that voyaged from the ancestral homeland, Hawai‘iki, across the Pacific to Aotearoa. In the room where the symposium was held, the Waikato Iwi’s 65 marae representing extended family groups send three representatives each to meet as a parliament to decide issues of law and policy affecting the Waikato-Tainui Iwi. The back wall of the room is lined with the paintings and pictures of Waikato-Tainui leaders, including the great warrior and first Māori King, Pōtatau I.

This rather lengthy background leads us to the Symposium itself. The organizers explained that Tūhonohono means a bonding and refers to Te Mātāhauariki Institute’s objective of joining customary visions of Māori and Pākehā societies in a unified jurisprudence. Along with Māori and Pākehā jurists and scholars, legal scholars from Australia, Papua New Guinea, Fiji, and Sāmoa also spoke and gave perspectives on custom in their jurisdictions. My own presentation centered on the Hawai‘i Supreme Court’s interpretation of statutory and constitutional provisions affirming the existence of Hawaiian custom as a background principle of real property law. I also touched upon Hawai‘i water and burial laws as well the Hawai‘i statute adopting chanter and teacher Pilahi Paki’s explanation of the values embodied in Aloha.

Although it was fascinating to hear the various perspectives from visiting scholars, the main discussion, one that intrigued me most, was whether and to what extent Māori custom could be incorporated into Aotearoa-New Zealand law. Chief Judge Joe Williams of the Māori Land Court and Chair of the Waitangi Tribunal spoke of Māori custom fitting into the spaces and “interstices” of law and society. Custom lived, he believed, in the marae and whānau (family), amongst the hapū (clan) and the iwi, but Māori custom found little opportunity to take hold or grow in the greater New Zealand and Pākehā society.

Others pointed to the great difficulties of incorporating custom into the existing legal framework. Judge Paul Heath of the New Zealand High Court noted that customary law consists of many norms that enable Māori to call upon those which best fit the moment, while New Zealand’s legal system centers upon single rules that are of general application. While customary law often looks for a successful resolution of a particular problem, Western legal processes set the highest value on precedence and predictability. He also pointed out that most judges and policy-makers don’t fully understand Māori concepts nor do they speak Māori – to them Māori culture and norms remain foreign.

Another problem, one that is certainly not unique to Aotearoa-New Zealand, is proving custom in a legalistic setting. The fact that custom is orally transmitted and not usually written down directly conflicts with the Western legal system’s preference for “documentary evidence and first-hand accounts.” As one of the papers prepared for the Symposium put it, “how can we test those who claim to know [custom]? How can we know that they are not just making it up? How can we make sure that it is not being stated to suit the personal and political interests of those who claim to know it?” These are questions with which Hawai‘i courts and policy-makers have had to grapple and, so far, they have decided to approach each situation on a case-by-case basis.

I came away from the Symposium with a great appreciation for the work of Te Mātāhauariki Institute in completing Te Mātāpunenga, the compendium of Māori customary law. It is an accomplishment in its own right, but its true value will be in the increased knowledge and understanding that it will bring to judges, legislators and policy-makers. And yet, I also left with more questions than answers – can two such very different ways of viewing the world really be joined into a cohesive jurisprudence? From the Māori perspective, is that even a desirable objective?

I turned to a Māori colleague at the University of Auckland to provide some context for this debate. She explained that the cohesive jurisprudence model is a compromise that accepts Pākehā institutions of governance and Māori aspirations of forming their own institutions as equally valid and seeks to “merge them” into one coherent system. As she pointed out, therein lies the difficulty. Although the inclusion of Māori principles and custom into general New Zealand law can be seen as progress, others view it as inherently flawed - Māori interests, concepts, and principles will always be outweighed by competing Western ones. An alternate model, one advanced by many Māori, is to maintain and build Māori society with systems formulated by Māori according to their own principles and with greater control of Māori institutions – a parallel system that puts Māori culture, hopes and aspirations first.

This led me to reflect upon the similarities and differences in the Hawaiian and Māori experiences. The similarities lie not only in our Polynesian roots, language, and culture, but in the fact that both of us were colonized by Western powers, and that currently, each of us is a minority in our homeland. Māori comprise about 20% of the 4 million people of Aotearoa, just as Hawaiians are approximately 20% of Hawai‘i’s 1.2 million people. A major difference, one influencing the development of law and legal processes, is that Hawai‘i was an independent sovereign, developing its own legal structures and jurisprudence prior to the illegal usurpation of the Hawaiian government in 1893. Nevertheless, the ongoing debate in Aotearoa-New Zealand over a “cohesive jurisprudence” versus a separate system of institutions and laws reflecting Māori principles and culture is one that resonates in Hawai‘i; it is a debate worth watching and one that will undoubtedly hold many lessons for us as we seek to forge new relationships with the federal and state governments.