There was a time, not so long ago, when countries in the common law tradition had comparable legal systems. Yes, there had always been differences between, say, the law of the United States, the United Kingdom, and Australia. Still, their basic approaches to legal matters were similar. …
But times are changing, and in few places are they changing as rapidly as in New Zealand. Something radically different is emerging in New Zealand’s legal system. It may still be rooted in the common law, but it is increasingly incorporating traditional Māori concepts. …
More than any other legislation before, the Natural and Built Environments Bill (NBE) and the Spatial Planning Bill embody what are presented as Māori legal concepts. …
Right at the start of the NBE, the Bill states the following goal: “The recognition of, and making provision for, the relationship of iwi and hapū and the exercise of their kawa, tikanga (including kaitiakitanga), and mātauranga in relation to their ancestral lands, water, sites, wāhi tapu, wāhi tūpuna, and other taonga.”
What does it mean?
All these words and terms probably need to be translated for an Australian audience. Tikanga, for example, is the body of Māori custom. Kaitiakitanga is the Māori concept of looking after the environment. Mātauranga Māori is the body of Māori knowledge, which includes both factual knowledge and mythology.
That latter part makes mātauranga Māori a fuzzy source of legal principles. Judges familiar with Māori culture may purport to distill the legal significance of such terms. However, tribal elders and some experts emphasise they differ in meaning for each iwi. Meanwhile, other experts, including the only Māori judge on the Supreme Court, assert that it is not for the courts to declare tikanga or to change it. It is only for them to ascertain if from its tribal custodians.
The draft NBE legislation purports to define some of the terms, but always with a degree of circularity.
Thus, for example, “kaitiakitanga means the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources.” The problem is that there is no readily accessible standard meaning of precision in any of the Māori terms in that “definition”.
These terms are not just legal or political puffery. They present as core elements of the Bill. Tikanga is mentioned 31 times throughout. Mātauranga Māori comes up 26 times. Kaitiakitanga can be found in seven places. They all beat “property right”, which only features three times. …
New Zealand’s new system expressly negates equality before the law. It does so by selectively granting rights on public and private property use. Under the Bill, Māori will have some exclusive powers to decide on how resources are used to change the environment. Mind you, “environment” is defined widely to cover both cultural and economic matters, not just nature. …
By its historic origins, going back to Magna Carta, the common law was a system that (sometimes imperfectly) tried putting everyone under the same law. Not even the king was above the law, and when he tried to ignore that principle, it could cost him his head.
What we are witnessing in New Zealand is the emergence of an altogether different system. It has more in common with George Orwell’s Animal Farm where “all animals are equal, but some animals are more equal than others.”
Perhaps New Zealanders are happy to be heading there. Who knows? So far, at least, they have not been asked.
Decolonization in action, white man.
hat-tip Stephen Neil