Tikanga complaint ‘misplaced’
by Greta Yeoman
Published on Capital Letter
Gary Judd KC's complaint to the Regulations Review Committee over the New Zealand Council ofLegal Education’s tikanga Māori regulations is “misplaced”, the Asian Legal Network says.
“The crux of his complaint is a criticism of the substantive merits of the judiciary’s increasing recognition of tikanga and an overreach of the judiciary,” the ALN says in its submission [1]published last month.
"Rather than address these concerns through the appropriate forums, Mr Judd KC has packaged these criticisms in a complaint against regulation on legal education.”
The regulations will require all students starting a law degree from 2025 to study the general principles and practices of tikanga Māori.
The ALN says Judd’s lengthy criticism of the Supreme Court’s decision in ELLIS v R [2022] NZSC114 “highlights that the matter is a real, ongoing legal issue of the highest judicial importance, which law students should engage with in their legal education”.
It says Judd disagrees with the substance of the Ellis decision, namely whether tikanga is law.
“These may be Mr Judd KC’s personal views, which he is entitled to express,” the ALN says.
“But these views should not then form the basis of a complaint to a select committee that is notoverseeing the substantive legal issue nor reviewing the conduct of the judiciary.”
In May, Committee chair and former Attorney-General David Parker told Judd it accepted that “on the face of it” the complaint related to two grounds under Standing Order 327.
The Committee can make recommendations. But the House must decide whether to disallowregulations.
Comity and endorsement?
The Committee sought submissions from the Council of Legal Education and the New Zealand LawSociety. Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) was permitted to submit.
The Auckland Women Lawyers’ Association, the Arbitrators’ and Mediators’ Institute of NewZealand, and Auckland lawyer and Free Speech Union Legal Council co-chair Thomas Newman also sent in submissions. Newman was the only one to submit [2] in support of Judd’s complaint.
The ALN says if a committee member were to move a motion due to Judd’s complaint, they would effectively accept the basis of it – namely Judd’s criticism of the judiciary.
“If an MP were to express Mr Judd KC’s views, this would be inappropriate and infringe comity.”
The ALN says endorsement of such views – even indirectly – could also undermine the“constitutional relationship of mutual respect between the legislative and judicial branches ofgovernment”.
“Upholding this complaint may also set a dangerous precedent whereby thinly veiled complaintscan thwart the intent of Parliamentary processes.”
But Judd says Parliament must disallow the regulations because otherwise it will be endorsingcompulsory tikanga.
“As NZCLE is acting with parliamentary authority, Parliament will be seen to be endorsing them, unless they are disallowed,” he says in supplementary submissions [3] published last month.
He also suggests the disallowance could be the start of a wider campaign to “demonstrate that we are one people with one democratically elected parliament and that efforts to undermine our free and democratic society are not morally legitimate but an affront to the values New Zealand seeks to uphold”.
Legal education
But the ALN says discussion about whether tikanga is law is irrelevant. The issue is about whether tikanga Māori should be included in legal education.
It says it is “crucial” that tikanga is woven into the fabric of legal education in Aotearoa.
“This ensures that legal practitioners are provided insight into the realm of tikanga and te ao Māorimore generally, and in doing so, promotes a pluralistic perspective of the law,” the ALN says.
It says the legal profession will have a role in navigating the constitutional relationshipand interplay between tikanga and state law. Upskilling law students will be an important step forthis.
The ALN says tikanga is valuable, especially for lawyers.
Tikanga not only expands the set of legal tools lawyers can draw on to assist people to resolvelegal issues, it prompts the profession to think more critically about the interaction between differentlegal systems and consequently, deepens the profession’s understanding of state law.
AMINZ view
The Arbitrators’ and Mediators’ Institute echoes these points in its submission [4] to the Committee.
“A solid understanding of tikanga and its application within statutory frameworks and case law iscrucial for all professionals engaged in dispute resolution,” AMINZ says.
AMINZ is the largest organisation for dispute resolution professionals. It is nominated by theMinister of Justice to make appointments of arbitrators in place of the High Court.
It supports the inclusion of tikanga into legal education as it will enrich the knowledge and practiceof all members, including those who are not lawyers.
AMINZ says it has already discussed tikanga in a dispute resolution context in variouscircumstances. This includes in webinars on the cultural dimensions of mediation and the FarmDebt Mediation Act 2019.
It has also held presentations on lessons to be learned from the Waitangi Tribunal and the MāoriLand Court about well-designed dispute resolution schemes.
“The inclusion of te ao Māori and tikanga Māori in the New Zealand legal education curriculum isan important step towards creating a more culturally inclusive legal system,” AMINZ says.
Developing area
The ALN says “humility is necessary” when navigating tikanga.
Many lawyers will have little to no experience in tikanga Māori, but “owe it to the reputation of theprofession” to seek out accurate information and those with expertise, it says.
“This is standard practice when engaging with developing areas of law or the interaction of differentlegal systems,” the ALN says.
“We respectfully submit that the complainant has not meaningfully engaged with this large body ofresearch nor consulted the appropriate expertise.”
Grounds for complaint
The ALN says none of the grounds proposed by Judd are made out.
Judd has suggested – and the Committee agreed in May that “on the face of it” – the regulationsmay “trespass unduly on personal rights and liberties” and “appear to make some unusual orunexpected use of the powers conferred by the enactment under which they are made”.
The ALN says the regulations are in line with the general objectives and intentions of the Lawyersand Conveyancers Act 2006, namely the Act’s purpose.
“By ensuring our future lawyers are aware and capable of engaging with these ongoingdevelopments of law, particularly tikanga Māori, this protects consumers of legal services andensures a ‘more responsive regulatory regime in relation to lawyers’.”
The regulations are not “unusual or unexpected” but are part and parcel of ensuring New Zealand’slegal education is fit for purpose, the ALN says.
Nor do they undermine anyone’s rights and liberties, it says.
“Individuals exercise a choice whether to undertake a law degree, with the prospect of joining thelegal profession,” the ALN says.
“This requires a legal education that is in step with the current development of the law, in order touphold basic duties of a barrister and solicitor of the High Court.”
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