Some more equal than others? NZ has more in common with Orwell than the Magna Carta

Dr Oliver Hartwich
The Australian
24 November, 2022

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.
New Zealand was also a member of this family of common law jurisdictions. In one respect, that is by not having a written constitution, New Zealand was actually quite like Britain, the historic source of the common law.

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.

This is a recent development, albeit one with a long prehistory. For one and a half centuries, New Zealand law and Māori custom (tikanga) have sat side by side. But their interactions were limited, and the only laws enforceable were those laws passed by Parliament and made by judges. State-made law was dominant over tribal rules.

Over the past few decades, Australia and New Zealand have witnessed the gradual recognition of customary title. In Australia, the landmark case was Mabo. In New Zealand, the establishment of the Waitangi Tribunal was the primary step to consider historic grievances over breach of the 1840 Treaty.

At least in principle, recognition of customary title is reconcilable with the common law. Indeed, the New Zealand Foreshore and Seabed Act 2004 was passed as a statutory codification of the common law tests for establishing communal property rights not extinguished by statute or adverse possession.

However, two Bills proposed by the New Zealand Government to replace the Resource Management Act go much further than that. 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. Whether these really give enough certainty to justify treatment as legal concepts is now a vital matter for New Zealanders.

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.”

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 distil 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.

The Bill also states that Māori customary law applies to “all persons exercising powers and performing functions and duties” under the Act. This is besides their role of “giving effect” to the principles of The Treaty of Waitangi.

The role of Māori concepts within resource management will be pervasive. The same applies to the legal standing of Māori tribes (iwi), who feature not fewer than 153 times in the Bill.

This Bill takes the integration of purported Māori custom into the New Zealand legal system to a new level. It prominently enshrines various Māori concepts as sources of law which may not be properly known even to most New Zealand lawyers, let alone lawyers in other common law jurisdictions.

We may thus see the emergence of a new legal system in New Zealand – and perhaps a new system of government, too. The new system seems unlikely to be compatible with key elements of the rule of law, as generally understood. Its roots may remain in the common law, in its adherence to forms and procedures.

But 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.

New Zealand is heading away from other great common law jurisdictions in the terminology and philosophy it applies. The NBE marks a radical withdrawal from the broader family of the common law.

Perhaps the proponents of this Bill are unaware of this possibility. They may also regard the embedding of indigenous customs into statute as part of the normal evolution of the law. The NBE is not the first piece of legislation to move in this direction.

But maybe the Bill’s supporters would not even be unhappy if a long-term outcome were to be New Zealand leaving the family of common law jurisdictions and defining its unique place in the legal world. That would be an act of decolonisation, a radical break with the past.

Whatever the motives of the legislators, the Bill warrants wider discussion. Yes, it is “just” a Bill about resource management (important as that is). But it is a dramatic step on a path towards a different legal system: one defined by tribal concepts – and by tribes apparently unconstrained by their non-Māori neighbours.

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.

It might be worth asking them.

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