Has The Ellis Case Seen Supreme Court ‘Bleeding Heart’ Judges Captured by Tikanga?

The NZ Herald veteran columnist Audrey Young examined the \’audacious\’ capture of the Supreme Court, in particular Justice Glazebrook, who had previously raised the issue via a minute to the lawyers representing both sides.

Ellis, who was not Maori, was provided the ability to appeal his convictions posthumously but the issue of tikanga Maori was not pertinent to that appeal, nor to the appeal being heard by the Court.

Tikanga is Maori customary law and is highly relevant in some contexts, but equally irrelevant in others.

The Supreme Court had \’contrived\’ to be confronted with it in the Ellis case, Young wrote in her column, further developing concerns among others of the role of tikanga Maori in the legal system.

The Ellis decision did surprise on a number of counts, but the reference to tikanga was perhaps the most surprising given that the issue was not before the Court until the Justices raised it themselves.

In the Herald column, Young wrote that the Supreme Court had \”rewritten the law on tikanga knowing full well that the Government had asked the Law Commission to undertake a detailed study of the role of tikanga Maori in common law.

\”The court decided to usurp that work and pronounce a significant change to the law about when tikanga should be recognised in common law, while at the same time paying lip service to an evolutionary approach to the development of the common law.\”

The previous recognition of customary Maori law was to regard its reasonableness and whether it was compliant with statutory law as set by Parliament, rather than through unelected judges.

However the Ellis decision has renounced such reasoning and, as Young points out, \”means that courts now have the discretion to apply tikanga in any case they see fit, in any way, without any test.\”

\”Morass of Unknown Custom\”

When the issue of tikanga Maori was mooted, both Solicitor General and others were caught off guard as to quite what it would mean in the case.

Justice Terence Arnold, who sat on the Ellis appeal. said in a magazine article that if the court were to apply tikanga in the Ellis case, he would like to understand the implications for other areas of the law. “For myself, I have not the faintest idea what the answer to that is,” he said.

In the same North and South article, leading lawyer Stephen Franks (left) noted: \”tikanga to me as a “morass of unknown custom”. He believes “bleeding heart judges” will use it “to start making up things as they go”. “It just allows judicial activism,” he said.

The use of tikanga is certainly a factor that raises a raft of issues.

In an award-winning essay in the Māori Law Review a month after the Ellis hearing, Victoria University student Elliott Harris said that the case would “increase the capacity of the state legal system to sporadically engage in the selective adoption of concepts of tikanga Māori to suit its purposes”.

Justice Williams, now on the Supreme Court and endorsing the use of tiganga in a 2013 speech, worried that “most judges who must weigh and apply tikanga in their work (or choose not to do so), will never have heard of whanaungatanga or kaitiakitanga”.

The Ellis case will doubtless change that situation now.