Evidence Bill; Third Reading

Hone Harawira, Member of Parliament for Te Tai Tokerau

Thursday 23 November 2006

In a paper delivered at the Te Oru Rangahau Maori Research and Development Conference in 1998, Hon Justice Eddie Durei spoke about values and ethics in Maori research, based on his experiences as a Judge of the Maori Land Court for twenty years, and as chairman of the Waitangi Tribunal for fourteen.

Judge Durie’s conclusions about Evidence Law and Te Ao Maori are relevant to our reading today, of the Evidence Bill. He said:

Part of the problem even today, is that the judges, through no fault of their own, are being called upon to assess the mores of a society still largely foreign to them.

This leaves scope for those who would profit from the situation with dubious but compellingly presented evidence to pull the wool over the judges’ eyes.

Conversely, reliable evidence may also be improperly utilized or badly understood by judicial officers.

These statements are very much in line with the findings of the Law Commission that a change in approach by judges and lawyers is needed to achieve the desired reforms in Evidence Law.

Their recommendations that ‘common sense’ should be applied as to what is relevant and what should be included, may require them to look again at their own existing knowledge, because that’s the question – what is relevant, and who defines it? Again I refer to Justice Durie:

Researchers must set aside the distortions of past judicial precedent and its present-day effect. They must come to a better understanding of Maori society if they are to measure past conflict and conduct in a cultural context.

To understand that society, they must look inside its thought concepts, philosophy and underlying values and avoid interpretations from an outward appearance. It will be important to consider the poetry, songs, legends, proverbs, idiom and forms of speech-making.

Mr Speaker, I have taken the time to quote from the good Judge because his views are critical at this point of our history, as we strive to ensure that knowledge is culturally relevant.

If we are to move to a justice system that reflects Aotearoa, we need to ensure that the Maori worldview is integrated and respected throughout, including the provisions of the evidence code.

In that light, both parliament and the judiciarycould benefit from a landmark study completed by Dr Nin Tomas earlier this year. Dr Tomas is Ngati Kahu, and the first Maori to have completed a PhD in Law at the University of Auckland.

Her topic was Maori custom law – tikanga Maori – and its influence on land in Tai Tokerau, and in particular, the Papatupu hearings held early last century.

The hearings were held in te reo Maori before committees of rangatira steeped in the tikanga of the Tai Tokerau, and were about the Maori system of land entitlement as considered by the Native Land Court.

During the course of her study, what she found was a coherent system of principles based on whakapapa, whanaungatanga, mana and tapu – and supported by the concepts of mauri and wairua.

She explains the relationships between these principles, practices and values, as being integral to an understanding of law.

Dr Tomas’ thesis also describes situations in which legal arguments seem to have plucked tikanga Maori out of thin air to support evidence, without considering the framework of values needed to give coherence to the argument.

Her thesis is a vital addition to the knowledge pool that can enhance the quality of debate in courts, in schools, and in our parliamentary chamber as well.

Mr Speaker, these are weighty issues and if we are to make our laws coherent and workable for the 21st century, then we must also ensure that tikanga Maori is considered properly, and not by random choice.

Mr Speaker, I also want to pick up an issue raised during the second reading about consultation, by my colleague, Te Ururoa Flavell.

He recognised the contribution of the Law Commission – Rt Hon Geoffrey Palmer, Dr Warren Young, Helen Aikman and Justice Durie, commended the Maori Advisory Committee, and acknowledged the contribution also of important submitters such as Annette Sykes, Moana Jackson and Maui Solomon.

I also want to acknowledge the comments that both Russell Fairbrother and Richard Worth made in recognising the significant role that our Chief High Court Judge, the full Supreme Court, Justice Baragwanath, and the Hon Dr Robert Fisher made in enhancing the final outcome.

But the issue that arose between Mr Flavell, Mr Fairbrother and Mr Worth struck at the core of the cultural clash to which I am referring.

Mr Flavell said that while he recognised the contribution of the various bodies of experts, it was“disappointing to see that there was no formal forum in which hapu and iwi or Maori organisations were met”.

And this goes back to comments made by Justice Durie and Dr Nin Tomas, about the cultural context; understanding the principles of mana, tapu, whakapapa and whanaungatanga, and what that means to tangata whenua.

Consultation should not just be with the judges, the juries, the lawyers and the lecturers, if it is to have any real meaning within te Ao Maori.

The laws of evidence have meaning to whanau, hapu and iwi as well, and they have as much right to be heard as the legal or academic fraternity.

Mr Speaker, I looked back at a Law Commission report from 1999, Te Tikanga o te Ture – te matauranga o nga Wahine Maori e pa ana ki tenei (Justice: the Experiences of Maori Women), which included the following statement:

“The Treaty guarantees three things: protection, partnership and participation. But we are never allowed the participation or the partnership for Maori. You haven’t got protection if you haven’t got participation or partnership”.

It says a lot about how Maori see their participation in the world, and their desire to ensure whanau, hapu and iwi are actively involved as part of the effective operation of the Treaty partnership.

Mr Speaker, we will be supporting the Evidence Bill at this, its third reading, because we believe that the enhancements are useful, the recommendations from the select committee are helpful, and indeed that Messrs Fairbrother, Worth, Finlayson and Tanczos have done a good job.

But we hope that the issues raised about matters such as tikanga Maori, Maori customary law, consultation, and the cultural basis or bias of knowledge, will continue to exercise the minds of all members in this House.

Ends

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