News | Maori
14 Jul 2024 7:01
NZCity News
NZCity CalculatorReturn to NZCity

  • Start Page
  • Personalise
  • Sport
  • Weather
  • Finance
  • Shopping
  • Jobs
  • Horoscopes
  • Lotto Results
  • Photo Gallery
  • Site Gallery
  • TVNow
  • Dating
  • SearchNZ
  • NZSearch
  • RugbyLeague
  • Make Home
  • About NZCity
  • Contact NZCity
  • Your Privacy
  • Advertising
  • Login
  • Join for Free

  •   Home > News > Maori

    Can the courts measure mana? How Maori tikanga is challenging the justice system

    In overturning the convictions of Peter Ellis, the Supreme Court showed Maori tikanga has a place in New Zealand’s common law. The lower courts and the law schools now need to make it work.

    Rachael Evans, Lecturer, Kaupeka Ture | Faculty of Law, University of Canterbury
    The Conversation

    When the Supreme Court used the idea of damage to a person’s mana to posthumously overturn Peter Ellis’ historic convictions for child sexual abuse, it created a remarkable precedent.

    However, two more recent cases show the courts are still grappling with the concept of mana. They also raise important questions about its use as a defence, and about the place of Maori tikanga (custom) in the law and how it is taught.

    The Ellis case was one of the longest-running and most controversial in New Zealand legal history, with multiple appeals leading up to the eventual Supreme Court ruling in 2022.

    As well as overturning the convictions, the court was unanimous that tikanga has been, and will continue to be, recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant.

    However, the Supreme Court did not explain how tikanga will be approached in the common law. This has left it up to lower courts to develop that body of law, known as “jurisprudence”. The difficulty of this is now becoming more apparent.

    For starters, the concept of mana is not easily translated into English. As te reo Maori expert Mary Boyce writes:

    the word mana is used throughout Polynesia to signify a core cultural force, which is rendered in English variously as power, authority, prestige and effectiveness.

    Author, scholar and pukenga (expert) Ta Hirini Moko Mead explains there is a high value placed on mana, and that every person is born with it. This can increase or decrease throughout life, affected by an individual’s deeds and how these are regarded in the community.

    This shifting nature can make mana a difficult concept for non-Maori to understand. And it adds to the complexity of incorporating concepts of mana and tikanga in courts still largely derived from the British legal system.

    interior of whare nui (meeting house) with people listening to a speaker
    Maori tikanga has a variety of definitions and applications, but how it works with the common law remains a work in progress. Getty Images

    Weighing up mana

    In the case of Green v Police earlier this year, Joshua Green was able to obtain a discharge without conviction because a conviction would have significantly affected his mana.

    A discharge without conviction application involves a judge weighing up whether the consequences of the conviction outweigh the seriousness of the offending. In this case, Green had been charged with obstructing a constable.

    He owned a logging company and one of his truck drivers had crashed. Green went to the scene to assist his driver and take photos despite being instructed not to by police.

    Green was a kaumatua and respected leader. The High Court found the negative effect of a conviction on his mana would outweigh the seriousness of the offending.

    While a discharge seemed appropriate on the facts, adding mana into a balancing exercise like this is not without complication. In weighing up someone’s mana as part of this exercise, a judge must consider how much mana someone actually has.

    As Hirini Moko Mead has explained, Maori society understands that mana is not equal across everyone. Asking a common law judge to weigh up a person’s mana comes with some pressure. Also, a leader perceived to have greater mana may be entitled to a discharge without conviction when an ordinary person may not be.

    Limits of tikanga

    In the case of Sweeney v Prison Manager of Spring Hill Corrections Facility from May this year, Paul Sweeney sought the creation of a new cause of action based on damage to his mana.

    His visitor status as an addiction counsellor had been revoked at Spring Hill due to concerns arising from his social media posting that he may be associated with the Mongrel Mob. Sweeney requested the High Court recognise a novel tort (cause of action) based on damage to his mana and hauora (health).

    He wanted NZ$325,000 for the damage he said happened to his mana, and a court order that he be given a marae-based apology. These claims were dismissed. The High Court looked at how tikanga works and held that the tort being sought could not be recognised by common law.

    Sweeney’s claim was twofold. On one hand, he sought to have tikanga rights recognised, on the other he sought a monetary penalty that is more like that seen in common law.

    This perhaps signals a problem with integrating some aspects of tikanga into common law without much direction from the superior courts. There is at least a potential risk of claims using aspects of tikanga where it is convenient.

    Risks to tikanga

    Some Maori commentators have warned that the common law could corrupt elements of tikanga by subsuming it inappropriately. If a claim combining the two were successful, that might happen. However, it appears a “mana calculator” won’t be necessary in the immediate future.

    But the issues raised by both cases discussed here highlight the need for education about tikanga in our law degrees. Lawyers need to understand where, when and how tikanga is relevant in order to properly advise their clients.

    The courts can only build good, authoritative jurisprudence where the arguments presented by lawyers are good and authoritative. There is a risk of damage to tikanga concepts if lawyers do not have that knowledge and do not respect the authenticity of tikanga.

    The Conversation

    I teach tikanga-based legal concepts into the law degree at the University of Canterbury.

    This article is republished from The Conversation under a Creative Commons license.
    © 2024 TheConversation, NZCity

     Other Maori News
     09 Jul: A stern message from Taranaki iwi - who say reforming freshwater laws will bring conflict with Maori
     02 Jul: Blues prop and potential debutant Mason Tupaea has been called into the Maori All Blacks as an injury replacement for Joe Moody ahead of game two against the Japan XV on Saturday
     29 Jun: Maori All Blacks loose forward Cameron Suafoa is relishing a chance to connect with his heritage once again ahead of tonight's clash against a Japan XV in Tokyo
     29 Jun: A rollercoaster year for loose forward Cameron Suafoa continues as he lines up for the Maori All Blacks against a Japan XV in Tokyo this evening
     26 Jun: Timaru's Mayor says the Government's contentious Maori Ward Bill is a good idea
     25 Jun: Te Pati Maori says claims against Manurewa Marae - say a lot about how its processes are viewed
     20 Jun: Local Government Minister Simeon Brown is defending the extra costs of polls on council Maori Wards
     Top Stories

    Tennis ace Lulu Sun insists her run to the Wimbledon quarter-finals far exceeded her expectations More...

    ew electric passenger trains have arrived in Auckland - with more due over the next few weeks More...

     Today's News

    Jack Quaid has admitted he is "immensely privileged" as a nepo baby 6:34

    Health & Safety:
    The Health Research Council's dished out 12-million dollars, to fund a swathe of Otago studies 6:27

    Daisy Edgar-Jones says she has found a "lifetime" best friend in her 'Normal People' co-star Paul Mescal 6:04

    Joe Biden reassures supporters 'I'm OK' as Democrats remain split over US election prospects 4:37

    Tennis ace Lulu Sun insists her run to the Wimbledon quarter-finals far exceeded her expectations 21:57

    Joey King says Sabrina Carpenter and Barry Keoghan are "too busy" to double date 21:34

    Living & Travel:
    Tonight's biggest Lotto winner takes home Division One's million dollar prize 21:17

    Kourtney Kardashian suffers with "guilt" about spending enough time with her brood 21:04

    Michael Douglas has "deep concerns" about President Joe Biden running for re-election 20:34

    Brandy has hailed Ariana Grande as "one of the greatest singers ever" 20:04

     News Search

    Power Search

    © 2024 New Zealand City Ltd