A review of Professor Peter Watts KC’s paper ‘Ellis v R: A Revolution in Aotearoa New Zealand, Welcome or Not’
Revolutions conjure images of violent uprisings, the storming of institutions and the forcible overthrow of existing orders.
But constitutional foundations can be destroyed through more subtle means. When judges discard long-established constitutional principles and remake the law according to their preferences, they engage in a revolution that may be no less destructive to a nation’s democratic foundations than an uprising in the streets.
In a compelling analysis published this month in the New Zealand Law Review, Emeritus Professor Peter Watts KC exposes how the Supreme Court’s decision in Ellis v R (continuance) represents a revolutionary departure from New Zealand’s constitutional foundations. Ellis v R: A Revolution in Aotearoa New Zealand, Welcome or Not exposes how, by declaring tikanga relevant to any issue of common law or statutory interpretation, the court has fundamentally transformed our legal system without a constitutional mandate.
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Also, the Court spent two days hearing this appeal of apparently significant public importance at the expense of other potential appeals of public importance that, apparently, were not as important as combing over a case where the deceased titular appellant could not directly benefit from its decision.
Revolution seems perhaps a tad inapt. Before 1840 there was one law. Te Tirity was a Glorious Revolution, inviting a foreign monarchy. Wi Parata is the Usurping, so Ellis would be the Restoration?
I do not intend to comment on the substance of the Watts article and the Partridge review, which I, humbly, broadly agree with.
The cautious approach of the minority in Ellis to the tikanga issue has proven to be wise: it appeared to me, with respect to the majority, to be self-evidently correct when I first read the judgment. I have not changed my mind in the light of subsequent decisions and commentary, including the Law Commission’s review.
Ellis was not the case for a broad pronouncement of tikanga as part of the law of New Zealand – it was neither necessary nor fitting on the facts. The Court did not appear to hear from an active contradictor and given the apparent reach of the majority judgments across the common law of New Zealand, we are now left with a simmering and wide-reaching controversy.
Interestingly, just prior to the New Zealand wars reigniting in 1860, some Maori groups were running their own courts across rohe, the Kaingarara movement in the Taranaki being one such group, to the dissatisfaction of some of their number, the Kingitanga and the settlor government. But even those courts limited themselves to intra-Maori disputes and would not have assumed jurisdiction of cases involving disputes with settlers or over serious crimes such as murder.
I understand the depth of desire of some Maori to have their cultural practices for redress and justice adopted by the courts. The justice system has not done a very good job of delivering justice to Maori, although we have made a lot of progress. But embracing Maoritanga as part of the law of the land applying to all is the sort of minefield Jonathan Sumption has mentioned, that is more apt for political reform than for the judges to decide.
We should bear in mind aspects of Maoritanga will not just be ill-fitting for non-Maori, including ethnic groups over a broad canvass who have settled in this country. Some of it may be abhorrent, culturally, to some. We have to move forward with sensitively and caution bearing in mind it is not just about a clash of two cultures, but potentially many.
We lack the political leadership to handle this issue, at the moment. The judges cannot fill that void.
I add that Professor Brookfield saw this coming and the challenges charting such a radical course might pose, see his 2009 article:
https://www.nzlii.org/nz/journals/NZLFRRp/2008/11.pdf
And his book:
WAITANGI AND INDIGENOUS RIGHTS: REVOLUTION, LAW AND LEGITIMATION, 2006 revised Ed, which when first published Lord Cooke of Thorndon said of it:
“Whether or not it convinces, this is a masterly book. To read it is to experience a broadening of the mind.” – Lord Cooke of Thorndon, The Law Quarterly Review
The logical destination of tikanga as general law is a radical departure from previous constitutional arrangements, the logical legitimating point, temporally and as a matter of sovereign power, being the arrival of waka from the islands of the South Pacific centuries ago; the bridge across these being a reassertion of rangatiratanga based on Article 2 of the Treaty or an assertion that rangatiratanga has continued uninterrupted despite the arrival of Cook and British imperial assertions of sovereignty, dressed up over time in legal finery.
I am not endorsing these developments, or the historical narratives and legal reasoning underpinning them, but it’s time we faced up to the potential cascading effects of these Supreme Court cases in our constitutional arrangements; and for what this portends, outside of courtrooms and the minds of law review writers and academics.
New Zealanders including lawyers are not known for facing up to such crises in a timely manner, because as we all know ‘it’ll be right’.
Strong political winds are beginning blow behind the ideas of the Supreme Court, leading us at best into the social and economic doldrums, at worst to some form of destructive revolution.
Personally I think there is a middle way, but fanatics on all sides of such debates rarely settle for anything other than getting everything entirely their own way.