pn849. Of Revelance to Waitangi Day. Dame Helen Winkelmann, Chief Justice on the Treaty and "Renovating the House of the Law"

Dame Helen Winkelmann

It says much for our country that  the Governor-General, the Prime Minister and the Chief Justice are all women. 

Keynote Speech to Te Hūnga Rōia Māori o Aotearoa (Māori Law Society), Wellington,  29 August 2019. The full speech  may be read here.   My extracts (and sub-headings)  refer mainly to the implications of the Treaty for a New Zealand concept of justice.

I want to map out for you what really is the beginning of the development of an indigenous law of New Zealand and an indigenous way of doing justice to meet the very particular needs of our society. There are three forces at work in this regard. First, there is the ever-increasing recognition in statute that there is a place in our law for the principles of the Treaty of Waitangi and for tikanga. Secondly, there is the work the common law does interpreting those statutes, breathing life into what would otherwise just be words on the page. And, thirdly, there is the work judges are doing, to come up with new ways of administering justice. 

The judiciary is resource constrained and legislation bound. But, even so, the judiciary can innovate and find new ways of operating if it has the support of the profession and the community.  Each of these areas interact.

Waitangi Tribunal and other early Acts

We can point to the creation of the Waitangi Tribunal in 1975 and to the expansion of its jurisdiction in the 1980s. Certainly, also to the re-emergence in the public discourse of contested views as to the meaning of the Treaty, a debate which continues today to hold the feet of our nation to the fires of racial and social justice. We can point to the inclusion in the State-Owned Enterprises Act, and to the life breathed into those statutory words by the Court of Appeal. We can highlight the decision of Justice Chilwell in the High Court in Huakina Development Trust v Waikato Valley Authority, in which he said that the principles of the Treaty of Waitangi are so fundamental that statutes should to be interpreted consistently with its requirements. 

There are other areas of law reform which signalled a fundamental shift in our society. In 1976, the Matrimonial Property Act was enacted, which for the first time created a presumptive 50/50 property split at the end of a marriage.

 In 1986, the Homosexual Law Reform Act was passed, which took the criminal law out of the bedrooms of our nation. And there was a new focus upon protecting our environment with the enactment of the Environment Act and the Conservation Act. 

Section 4 of the Conservation Act imposed a positive obligation on the executive and the judiciary, requiring that the Act to be interpreted and administered so as to “give effect” to the principles of the Treaty of Waitangi. 

In the area of how the courts operated, significant change began in the 1980s with the Family Court Act 1980 which provided for a specialist court operating with greater informality of proceeding, and which utilised mediation. 

Youth Courts

Just as fundamental was the reform of the Youth Court in 1989. Those reforms introduced a new model of justice, responding to New Zealand’s very particular circumstances. It is interesting that one of the catalysts for the reform of the Youth Court was the sense that while many with whom the youth justice system dealt were Māori, the adversarial system then regulating youth justice was at odds with Te Ao Māori. 

In a 1986 report to the Minister of Justice, Te Whainga i Te Tika, the Auckland Committee on Racism and Discrimination (ACORD) claimed “the present system is based wholly on the British system of law and justice, completely ignoring the cultural systems of the Māori and breaking down completely that system, completely alienating Māori, leaving them in a simplestate of confusion and at the whim of the existing system”.

A key objective of the Children, Young Persons and Their Families Act 1989 was to strengthen the bonds between families and to find community support for the young offender. The new model also drew on tikanga, emphasising group discussion and problem solving through the vehicle of the family group conference. This was, and is, first and foremost, a model of therapeutic justice, aiming to address the causes of offending and to prevent further offending. But it also employs restorative justice concepts, involving the victim, if they wish, in the conference process. The processes, as designed and implemented, sought to achieve a restoration of balance between the young offender and his or her victim, and within the community.

These were at the time radical innovations. And they sparked further innovation, leading to the establishment of the first Rangatahi Courts in Gisborne in 2008. Some of you will have heard about this Court earlier today. Rangatahi Courts operate within the Youth Court jurisdiction. They are a further evolution of the statutory youth justice model because they place the court in the heart of the community. Rangatahi Courts sit on the marae. Kaumatua and kuia sit alongside a judge as the young person is called before the Court to give an account of themselves in the course of monitoring of their sentence. This process creates links between youth, their whānau and the community. The creation of these courts was a judgeled innovation. Rangatahi Courts were created through an act of judicial imagination and many acts of judicial administration. 

The same is true of the Matariki Court, based in Kaikohe, Northland. The Matariki Court is a pilot court, which deals with adult defendants. At around the time the first Rangatahi Court was created, the then Chief Judge of the District Court, Judge Johnson, asked Judge Davis to take charge of establishing a court in Kaikohe structured to respond to the needs of the predominantly Māori community. 

The Matariki Court 

The Matariki Court draws on principles of restorative justice. The Court hearing takes place in a conventional courthouse. However, where a person pleads guilty to an offence, beforesentencing, the Court takes a number of steps. The Court seeks detailed information about the offender to inform an appropriate sentence. The Court also allows the offender to participate in a culturally appropriate rehabilitation programme. 

This is again a model which places the court within the community, drawing upon the strength of whānau, hapū and the broader community to identify and address the causes of the offending. 

This therapeutic approach to justice continues to gain ground. It is being used in areas such as the Drug and Alcohol Courts and in the Courts of New Beginnings and Special Circumstances, the latter two directed to homeless people caught up within the criminal justice system. A characteristic feature of these pilots is the time that is taken to find out about the defendant.

Information is sought as to the defendant’s background and to the cause of the offending. Government agencies and the community are then called upon to assist in addressing the cause of offending. This requires that judges have adequate information available to them as to the context within which offending occurred, the harm done by that offending, and also to understand, as best as he or she is able, the impact of any decision the judge will make. 

t also entails a model of justice which is part of its community, so that the courts can call upon the strength of the community in supporting rehabilitation of the offender, and restoration for those harmed by the offending. 

Equality of access to justice

The issue with these therapeutic courts however is that, with the exception of the Youth Court and Rangatahi Court, they operate as pilots. Most defendants will not have access to them. 

This in turn raises very serious concerns about equality of access to justice. For my part, I would like to see aspects of this therapeutic approach made mainstream in our courts, and will support the work of the Judges of the District Court and the Ministry of Justice in this regard. But I also would like to hear your views on how our courts can better reflect and respect Te Ao Māori. Judges, quite evidently, do not have all the answers. 

Beyond the form of court proceedings, we continue to develop a distinctive law of New Zealand which meets the needs of this country. This was the aspiration of those who worked for the establishment of a final court of appeal located in New Zealand, rather than in Downing Street London. The change is in a sense inevitable, as New Zealand increasingly finds its feet as a Pacific nation, and not as an English outpost. There is also impetus for change driven by the over-representation of Māori within the criminal justice system. This was at issue in Solicitor-General v Heta, a case in which the High Court addressed how the ability to receive information about an offender’s personal, whānau and community background impacted upon the sentence to be imposed.

 Having reviewed the legislative history of the Sentencing Act, Justice Whata said the section reflected Parliament’s recognition that the needs of Māori offenders, and in particular young Māori offenders should be addressed, because they formed such a disproportionate part of the prison population. He said of this: 

the effects of colonisation on Maori communities are well documented. Loss of land and other tribal resources, together with the destruction of traditional social structures, tikanga, culture and language preceded widescale migration from traditional rohe to urban areas. For every generation since, Māori have been disproportionally represented amongst the poorest, most illiterate and most criminalised in New Zealand.

Justice Whata observed however that section  did not enunciate a Māori specific response but rather enabled background information about offenders, including Māori, to be resented to a sentencing judge.

As to what was to be done with that information, he said a careful evaluation of how that background information was relevant to any of the purposes and principles of sentencing was required.  Here is a worthy renovation project for those of you who practice in the area of the criminal law. It engages one of the most perplexing philosophical questions. 

It really is not too grand to say it is a question which has confounded philosophers since the time of Aristotle: whether the law in sentencing (or, to use the language of philosophers, in setting a punishment) should recognise difference, disadvantage and disability, or whether it should sit in abstract judgment, unmoved by the particular circumstances and background of the offender. This is more than a philosophical question. It really asks us to reflect upon what we want from a criminal justice system. 

Tikanga and Common Law

Another task with which the courts are presently engaged is placing tikanga within the common law. This issue is not without its legal and academic controversy. On the jurisprudential front, the decision of the Supreme Court in Takamore v Clarke has arguably not settled the issue. I note that the then Chief Justice viewed tikanga, not as providing a determinative legal principle, but rather as providing a source of values to which the common law can have regard.This is perhaps not so far removed from Lord Mansfield, who, as mentioned earlier, regarded custom as a possible source of law, if it accorded with the values of the common law of morality, honest dealing and good faith. 

Academic commentators have identified the risk that if tikanga is codified into the common law it will deprive it of its richness, and necessary context.  This is an area with which we can anticipate the courts will continue to grapple and the academics continue to debate. It might be thought that this controversy will be left behind by developments in the legislative  sphere. Just as in the 1980s, when the incorporation of the expression “the principles of the Treaty” in statutes required courts to identify and articulate the principles, a similar phenomenon is now occurring with incorporation in statutes of reference to tikanga, and tikanga principles. I take as an example, recent amendments to the Oranga Tamariki Act 1989 (also known as the Children and Young People’s Wellbeing Act 1989).

That Act now makes specific reference to the importance of concepts of mana tamaiti, whakapapa and whanaungatanga, and more generally to tikanga principles, when any person or entity exercises powers under the Act. The Act also has a new .(clause) which imposes on the Chief Executive several duties relating to the implementation and recognition of the principles of the Treaty of Waitangi. 

Other examples of statutes importing tikanga principles abound. Such amendments reflect an explicit legislative acknowledgement that tikanga and Treaty principles must be given effect to. But there is no room for complacency that these legislative words will come to life. 

It is worth noting that, since the 1980s, there has been explicit reference to tikanga concepts in statute law, yet little argument advanced by counsel which has given life to those seeds planted within the law. In the original Oranga Tamariki Act, the Act required decisionmakers to have regard to the values, culture and beliefs of Māori.

Tikanga, Resources and the Environment

The Resource Management Act 1991 also made reference to kaitiakitanga, mana whenua and tikanga Māori itself. But there has been little exploration of what these concepts mean for the development of the law. Today, there are many more such references in legislation, waiting for this generation of lawyers, with their skills of forensic argument, and their knowledge of tikanga, to give that language effect and meaning – with the commitment, imagination and courage to make the legal arguments that will move the law in a new direction. 

There is also another phenomenon emerging with statutory recognition of tikanga, which can be conceptualised as a new stage in the development of a particularly New Zealand law. Most legal systems deny elements of the legal environment, animate or inanimate, the right to legal personality. But a different approach has been taken in consequence of settlement of treaty claims by Tuhoe, in respect of Te Urewera, and by Whanganui iwi, in respect of the Whanganui river. As part of the latter settlement, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 was enacted. Section 12 of that Act describes Te Awa Tupua as “an indivisible and living whole, comprising the Whanganui River from the mountains of the sea, incorporating all its physical and metaphysical elements”. 

In substance, the Act confers upon the Whanganui River all the rights, powers, duties and liabilities of a legal person. This grants the river a status in accordance with Māori tikanga and Māori conceptions of the environment. It is an acknowledgment of its existence among humans as an entity equally worthy of protection, and as incapable of being “owned” in an absolute sense. This follows the similar legislative approach taken in respect of Te Urewera in the earlier Te Urewera Act 2014. 

The significance of this legislation in respect of environmental protection and climate change, will no doubt, with the fullness of time, be addressed in the courts. There may also be arguments to be made as to whether traditional Māori concepts in connection with the natural environment have a wider role to play in this area. This is work for you for the future. 

Conclusion

I could go on. I could speak about how the growth of the Māori economy will surely have its impact in the areas of corporate and trustee governance. Companies and trusts were abstract legal concepts dreamed up in the courts of England, but they have been brought to work in our country in accordance with principles of tikanga. But I had better draw to a close with some concluding remarks.

What I have attempted to do is sketch out some of the significant challenges within our society with which the law, and the courts in particular, must grapple. I have described the tools with which the courts and the profession can respond, indeed are responding. The message I wish to leave you with is that this house of law within which we all work is itself a treasure, a taonga. But it is the nature of the law that it needs us to work to renovate it, so that it is fit for this generation and for those to come. As I said in my mihi, we are all carpenters working in the house of the law.

Martyn Bradbury in The Daily Blog calls it the Cheaty of Waitangi. "

The Cheaty of Waitangi & how it has failed us all in 2022"