Tikanga Māori essential part of law, Peter Ellis lawyers argue

By Te Rina Triponel

The Christchurch creche appeal by former childcare worker Peter Ellis is the surprising Supreme Court case where lawyers have argued that tikanga Māori is part and parcel of New Zealand law.

Ellis died last year during the early stages of his appeal against his conviction for child abuse of seven children who attended the creche.

Normally, when someone dies, their case is discontinued.

But Ellis' lawyers have argued that a person's mana continues after death and that, under tikanga, the right to an appeal in the courts should be allowed.

Law expert Jacinda Ruru specialises in tikanga and says it has always been part of New Zealand’s legal system but, for the most part, the state system has made moves to suppress it. But there had been areas where tikanga has survived.

“The legislation in the 1800s was really explicit about the need to convert to dismantle the Māori legal system,” Ms Ruru told Tapatahi.

“The Peter Ellis case is really interesting for us. The Supreme Court is directing the lawyers to present submissions to them so they can consider how our common law legal system can develop in regard to tikanga Māori.”

“I think it’s potentially quite exciting for us - it’s shown a sense of maturity.”

Last month the counsel for Peter Ellis, Natalie Coates, told the Supreme Court that the importance of seeking to restore and uphold mana is something that transcends death.

Ms Coates told the Supreme Court that "In accordance with tikanga, everyone - Māori and Pākehā - including Ellis and his whānau, have mana.”

Ms Ruru says this is a time to provide more opportunities for tikanga to be able to flourish.

“It’s great the Supreme Court is interested in what we have to say at this top-level,” she says.

“What happens in our country ought to influence our common law.”

“We need to have the confidence to move away from British colonial countries - including England.”

The Supreme Court's Justice Joe Williams raised concerns over the handling of tikanga Māori and said judges might have a simplistic understanding of tikanga but Ruru says methods are in place to recognise and respect tikanga Māori.

This includes questions of tikanga that are at High Court level to be presented to the Māori Appellate Court, which will then make findings which can be applied at the appeal.

“Common law has always sought to suppress tikanga, and we’ve got now an opportunity to think about how it could positively influence the development of our law.”

The Supreme Court reserved its decision in the Ellis case.