We speak with Bankside barrister and experienced litigator Kingi Snelgar (Ngāpuhi, Ngāti Whakaue, Te Whakatōhea and Ngāi Tahu) about his experience working on the Peter Ellis case – the approach with a two-day wānanga (a forum and sharing of knowledge) and his outlook for the future of tikanga in New Zealand law.
Tikanga embodies the customary law which governs Māori life. Under tikanga, mana and reputation carry on after a person’s death. Kingi Snelgar, as part of the Ellis legal team, argued that tikanga was part of New Zealand's common law and that under tikanga, Ellis would have a right to clear his name or re-establish his mana, even if dead. The appeal to allow the case to continue was granted.
On 7 October 2022, the Supreme Court quashed the convictions of Peter Ellis, finding a significant miscarriage of justice. Kingi was also part of the legal team that argued the substantive appeal.
Kingi, tell us more about the decision to have a wānanga and what that entailed.
One concern for many Māori is that our culture may be misappropriated. This is a concern long associated with the colonial history in Aotearoa that attempted to exterminate Māori culture and custom.
Unlike other cases, there was agreement between the Crown and the Peter Ellis legal team about holding a wānanga and deferring to the experts on tikanga. The agreement helped with how the tikanga experts and evidence were treated. The wānanga forum helped to promote an open discussion of how tikanga may apply to this case and it protected the way in which tikanga came before the court.
The two-day wānanga was attended by several experts led by Sir Pou Temara and Sir Hirini Moko Mead. They discussed what tikanga means in the context of an appeal continuing posthumously. The wānanga process is the gold standard to ensure our values and culture are protected and not misused. But there will not always be agreement between the parties and it is fairly costly.
What is an example of a case where there wasn’t agreement on how tikanga was presented?
In Takamore v Clarke [2012] NZSC 116 a Māori man’s pakeha wife argued she had rights to decide where he should be buried. Whereas his Tuhoe whānau disagreed. Ultimately, the clash was between estate rights in British law against Te Ao Māori and Tuhoe sovereignty.
The tikanga experts in Takamore were required to give evidence and be cross-examined. Cross-examination of tikanga experts must be done carefully and avoided if possible. The overall outcome was that tikanga was only one value to be weighed against other British values, and the British values were preferred.
What is the way forward in your opinion for the role of tikanga in New Zealand law?
The role of tikanga Māori in legal disputes is growing. It is not just marae now that you find tikanga and te reo, it is widely used across board rooms, schools, courts and businesses. With greater use and inclusion in business enterprise, professionals must be mindful of how they may resolve any disputes that arise.
Court proceedings may not always be a good option due to cost and an inability to set parameters on how issues of tikanga may be heard and interpreted. Alternatives such as wānanga through mediation and arbitration should be explored.
Holding wānanga like that in Ellis will not always be practicable and there is a fear about how tikanga may be used by the Court in the future. So, the issue moving forward is: where we don’t have wānanga, what processes and safeguards do we have in place to ensure our culture is not misused?
What would you say is your outlook for the future?
We have a progressive bench at the Supreme Court and a growing number of Māori judges across all levels. However, the issues of tikanga, say take the MACA issues, are growing at a rapid rate. Hopefully what Ellis does show is that there needs to be deference to people that are knowledgeable in this area.
There are newer judges that are more alive to Te Tiriti and therefore I’m quietly optimistic.
Further reading and forums
Join Kingi and a panel of expert speakers for ADLS’ webinar on 20th June 2023: Examining Ellis.
Read Kingi’s opinion piece in The Herald: Peter Ellis case: What role does tikanga play in the future laws - and lore - of Aotearoa New Zealand?
Join New Zealand Asian Lawyers for a second wānanga about how to argue tikanga and cases successfully, on 7th June 2023, learn more
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