New Zealand legal history was made earlier this month when the Supreme Court allowed former Christchurch Civic Creche worker Peter Ellis’s appeal against charges of sexual offending to continue, despite the fact he died in September last year.
It will be the first time in Aotearoa that a conviction is appealed by a dead person.
Ellis’ lawyer Natalie Coates spoke to Saturday Morning about the case and the cultural significance of the precedent.
She used an argument based on tikanga – that both Māori and Pākehā have mana in death and if the appeal was successful, this would affect his mana and that of his whānau.
Tikanga (Māori customary practice) is increasingly recognised in legislation and by the courts as important, but Ellis’ appeal is being seen as a landmark case. So how and why should tikanga be woven into our legal system?
Coates is a partner at Kāhui Legal who has previously worked as a law lecturer at the University of Auckland, for her iwi, and at an international human rights organisation.
The concept of mana is “a big one, and it’s difficult to summarise down, and it’s interconnected to all the other underlying concepts within tikanga,” Coates says.
“But some of the words that are commonly associated with mana are reputation, standing, prestige, power. And in te ao Māori, mana is something that is not only held by individuals, but also collectives, and… that idea of mana well transcends death. And when there’s been an impact on mana, or a hara committed (a wrong), many many years later there’s still battles or it’s still brought up on the marae for example, when there’s been an issue.
“So that was one of the strong concepts that we drew upon in the Ellis case, but also those ideas that when there’s been a hara or wrong committed there’s a need for there to be a state of air or rebalancing or rewriting. And in this particular case Mr Ellis has always maintained his innocence, and what… the Supreme Court had already held was that there was an issue to be heard, and that issue goes to whether that hara is the alleged offending or whether the hara was him being unjustly convicted.
“But that’s an issue that still needs to be heard – so we said that issue is still live, it’s still extant, and the fact that he has died shouldn’t necessarily matter – there’s an interest that transcends his death, and so should continue to be heard in this particular case.”
The team provided the example of Tūhoe prophet Rua Kēnana, who was arrested for opposing Māori conscription to fight in World War I.
“Him and his uri (descendants) had been unjustly persecuted by the government, and he was unjustly imprisoned. And that happened a long time ago, and since then there has been legislative recognition that his mana should be restored. That was a clear example – this is many years later, recognition of the importance of restoration of mana beyond the death of someone.”
How did the team ensure they drew upon a wider context of tikanga – not just tikanga known from their own perspective?
“We were really conscious of making sure that if tikanga is going to be drawn upon by the courts that there’s a culturally safe process for drawing upon that,” she says.
“In this particular case one of the things all the parties agreed to do, once the court had asked for submissions on this particular issue, was we held our Tūrei wānanga (meeting), and brought together a number of tikanga experts… so that included people like Professor Pou Temara, Professor Rawinia Higgins, Che Wilson, Sir Hirini Moko Mead, Teripowai Higgins and a number of others.
“We brought them all together so that they could be the ones that actually told us how tikanga applied in this particular case… those parties included not only the Ellis legal team, but also the Crown, as well as Te Hunga Rōia Māori o Aotearoa the Maori Law Society, who were acting as an intervener in this case as well.
“So all of us got together and really put the question to those amazing experts, who then told us and and had a wāngana about how it might apply in this particular case. And then from there, we drafted a joint statement that went to the court on behalf of all of the different parties. So I think that was a really important step and process, that we talked, to ensure that tikanga is safeguarded and and that we were getting it right when we’re applying it to this particular case.”
Coates says the process itself was more of a tikanga-based process, where the two opposing sides considered the matter together, rather than the traditional adversarial approach typical of the courts. “Which is a very open, transparent process,” she says.
“Yes, when we got to court we slightly disagreed as to how it might be interpreted, in this case; or the weight that tikanga should have in looking at this particular issue, but at least we were operating off that sound foundational agreed basis, which I thought was really a quite a progressive way of doing this.”
Tikanga experts are known to hold strong unbending perspectives on some things – was the group consulted about this situation okay with the process and the conclusion?
“Yes, what was interesting about it is that where they landed was something that they were unanimously happy with, in terms of how it applied in this particular case.
“That those concepts of mana, ea (finality) and hara were really important. And in this case it does suggest that the case should proceed, because there’s an issue that needs to be heard that impacts on mana.
“What was really I think important was that they recognised that everyone in that situation had mana, so not just Mr Ellis, but also the victims and their families as well. That was, I think, an important acknowledgement.”
Legal submissions then continued in court with arguments about how the submission about tikanga was relevant to this particular case.
“What I think was quite progressive was that all of the different parties, the crown, Te Hunga Rōia Māori o Aotearoa (the Maori Law Society) and the Ellis legal team, all accepted as a [base] proposition that tikanga is part of the common law of New Zealand.
“And of course, I think that had to be accepted based on the the case law that there has been to date. But I was glad that we weren’t arguing about that, actually, and we all accepted that as something that was just a given. There’s different ways that tikanga intersects with the common law and the law of Aotearoa New Zealand, so we were really just fighting about the weight and the emphasis and the particular history in this case as to whether it should continue going forward.”
Coates says where Ellis’ legal team and the crown divided was in the Crown’s argument that the victims’ mana had suffered enough, and the case shouldn’t go further.
“But our converse argument was actually it is important also because of their mana, for this case, to seek that finality. Because the court when they said that there was an issue to be heard, really opened the door up. And so it’s important to get to that state of final decision-making by the highest court in Aotearoa New Zealand.”
What does Coates say to those who feel the introduction of tikanga into law complicates things or creates uncertainty in the law?
“There’s well-established and long precedent that already establishes tikanga as part of our framework and legal matrix of Aotearoa. So there’s cases going right back to before 1840, before the treaty was even signed, that when an introduced legal system is implanted into a different country it doesn’t come unaffected. And that the laws, the indigenous laws of the land have a transformative effect – and will continue to have a transformative effect on that legal system. That’s a given.
“Of course there was a period of now legal history where that was denied. And there’s the infamous Wi Parata case that held that Māori were savages and that they couldn’t have any form of settled law, but we’re now well past that. There’s been a number of different cases where it has been recognized that tikanga is part of the values of our law.
“And so all the court is doing now, I think, is trying to figure out what that means in a particular context. The way that law operates in Aotearoa, particularly judge-made law; the law where legislation doesn’t cover it and so there’s gaps to fill – it’s slow, it’s a slow process that’s applied, and particular factual circumstances are applied in a given case.
“So even if the court comes out with their reasoning – and they said the case can continue, but their reasoning wouldn’t be heard until the substantive decision was released after the case is fully heard – even if they come out and reconfirm that tikanga is part of the laws of Aotearoa, that’s not going to change everything automatically, right?
“Again, it will be that slow case of; when we’re developing the law, what is it gonna say about this? Does it say anything different? It might say something that is consistent with the existing legal position, but if it says something different, what weight should we put on that? And does that better reflect the contemporary Aotearoa position than the traditional English common law position? Which is what we argued in this particular case – that in this case I would be surprised if non-Māori think interests die with death.”