Peter Ellis. Photo: Getty Images
Analysis - Legal experts say the weighing up of tikanga Māori in the decision to posthumously exonerate Peter Ellis of child sex offences marks a seismic moment in the country's legal history.
The Supreme Court on Friday quashed the convictions of Ellis, the Christchurch creche worker who was convicted in 1993 but who died in 2019, finding a significant miscarriage of justice.
It marked the end of one of the country's most prolonged and divisive legal sagas, but the appeal to the country's highest court almost fell short.
The fact the Supreme Court allowed the case to proceed despite Ellis' death was something of a precedent-setting measure in itself, drawing attention for its incorporation of tikanga Māori and whether it was relevant.
Normally, a person's legal proceedings die with them, but on Friday, the justices released their reasoning behind allowing Ellis' appeal to proceed weeks after his death.
In 2019, on the suggestion of the justices themselves, Ellis' lawyers argued that tikanga, the customary rules which govern Māori life, was part of New Zealand's common law.
Under tikanga, Ellis would have a right to clear his name or re-establish his mana, even if dead. In Māoridom, mana and reputation carries on in whakapapa, rather than an individual's life.
The Crown did not oppose the argument, agreeing that tikanga had a place in New Zealand law. It was to protect the mana of the complainants, the Crown argued, that the appeal should be rejected.
The whole process raised interest in legal circles about the potential wide-ranging precedent such a decision could set.
"It is very significant, and there are some quite explicit statements about the recognition of tikanga being the first law of Aotearoa," said Carwyn Jones, Pūkenga Matua for the Māori laws and philosophy programme at Te Wānanga o Raukawa and co-editor of the Māori Law Review.
"So therefore [it's] a source of law for the way in which New Zealand common law develops."
For years, tikanga Māori has increasingly been recognised by courts and legislation, with then-Chief Justice Dame Sian Elias declaring in 2012 that "Māori custom according to tikanga is ... part of the values of the New Zealand common law."
Even outside of legislation, there has been growing appreciation of the roles of tikanga rules, such as widespread adherence to the rāhui imposed by Ngāti Awa following the Whakaari eruption in 2019, or the long incorporation of kaitiakitanga into legislation.
But Friday's reasoning from the highest court were expected to clarify questions about how two systems and world views could be melded, particularly in the case of Ellis, a Pākehā.
Even among Māori, there was concern about whether Crown institutions, like courts, should ever be the arbiter of tikanga.
Because tikanga is an expression of rangatiratanga determined within iwi, hapū and marae. For the courts, which sit within the sphere of kāwanatanga, to adjudicate on tikanga would seem a gross overstep, a breach of the promises of rangatiratanga.
And after all, 90 percent of judges who would be weighing such decisions are Pākehā.
In a statement prepared for the court and attached to the ruling, tikanga experts Sir Hirini Moko Mead and Professor Sir Pou Temara wrote that, "there was concern expressed about ... the unintended consequences that might arise in Courts being able to draw on tikanga in making decisions. In particular, there was a fear that tikanga Māori might be misappropriated and wrongly applied in the Court system."
But they also said: "We support the notion that, where appropriate, tikanga principles as accepted by the common law should apply to all people; and, we consider courts must still, when tikanga comes before Courts, use processes and practice that encourage the preservation of the integrity of tikanga."
In Friday's decision, the Supreme Court justices said the granting of the continued appeal was specifically tied to the circumstances of Peter Ellis, in terms of the public interest, concern and the possibility of a miscarriage of justice, rather than tikanga itself.
But, significantly, considerations of tikanga and Ellis' continued reputation were incorporated into the end decisions, with each justice dwelling on it in their reasoning. They did, however, say it stood alongside other factors, such as the interests of finality, the weight of personal and public interest, and whether there was a potential miscarriage of justice to be addressed.
Carwyn Jones said that was an interesting approach, and while not an explicit declaration, it still gave plenty to pore over. This case gave something of a framework that would no doubt be tested in future.
"They certainly all refer to tikanga and, in particular, the weight that tikanga ought to be given in this case because it involved some central concepts like mana, whanaungatanga and whakapapa," Jones said.
"It certainly does seem to have played an important role in contributing to the overall test of whether allowing the appeal to continue would promote the interest of justice.
"There is still plenty of questions, plenty of scope in terms of thinking about how tikanga might apply in future cases because the court's also been very careful, it will be very context dependent," Jones said.
Three of the justices - O'Regan, Glazebrook, and Arnold - wrote that while tikanga may be relevant, it "did not necessitate a modification of the test set out".
So while public interest, not tikanga, may have been the ultimate factor in the decision to hear Ellis' appeal, the acknowledgement that tikanga was heavily considered was itself significant.
And while the hefty document outlining the judges' thinking may not have been explicit, it provided a lot about the thinking behind tikanga's place in the common law of Aotearoa, and the explicit acknowledgement that tikanga is the "first law" of Aotearoa, predating the treaty.
"There are some really important comments about the fact that tikanga is its own system of law," Jones said.
"Justice Palmer has previously talked about tikanga being an independent, free standing legal system. You see that explicitly commented on which I think is really important. Judges need to be aware that they have neither the mandate nor the expertise to actually declare the content of tikanga.
"While they need to refer it, while they might need to have an understanding of how it applies, the courts and judges are not the ones who determine what tikanga is. That's a matter for Māori. For iwi, hapū, whānau to determine."
When the justices asked both sides to consider tikanga, Ellis' legal team brought on lawyer Natalie Coates. Outside court on Friday, Coates said tikanga absolutely played an important role in the decision.
"I thought the Supreme Court carefully treated and provided a framework for thinking about the intersection between tikanga and the common law going forward," Coates said.
Coates said although tikanga had not been the deciding factor in the decision, it had affirmed its relevance in the country's legal framework.
But ultimately, the tikanga argument in the Peter Ellis was about ea, whether a balance had been restored.
Asked if his brother's mana had been restored, Mark Ellis broke down in tears outside the Supreme Court.
"Definitely. We are just so proud of him, proud of the person he was."
His sister Tania said: "I think it's groundbreaking and I think it's great for New Zealand to have going forward as part of its fabric of how we move forward, and embrace it."
- with additional reporting by Māni Dunlop and Kate Green.
