Abstract:
The symposium is based on three themes, finding, understanding and applying custom. Each theme flows logically to the next, as one cannot apply or understand custom without first finding its location. However, as these three themes will be the subject of much discussion over the following days I would like to comment briefly on what I consider to be the importance of tikanga Māori to New Zealand in 2007. Where we have come from, as a nation, is important in determining the relevance of tikanga Māori today. As recipients of an English judicial system, we inherited English common law and legislation yet, even at an early stage, tikanga Māori was recognized. I quote Sir John Salmond in 1924 in reference to the Native Rights Act 1865 from Grey and Iwaki: A Journey into Custom: “aboriginal Maoris should to a large extent continue to live by their own tribal customs, and to this extent those customs were given by statute, and still remain, the authority of law”.2 As a distinct New Zealand customary law developed the survival of tikanga Māori has often been attributed to its dynamic nature and its ability to change. The disappearance of some practices – such as deliberate cursing – and the arrival of others – such as burial practices – is an example of the adaptability of tikanga Māori. In conjunction with this, a continual recognition and application of tikanga Māori by Judges in our courts has seen it survive and, if anything, gain importance as a part of New Zealand common law. Today it is of practical relevance in sentencing, in family protection claims or where a statute expressly requires consideration of it, for example the Resource Management Act. It is also applied in situations where customary law survives unaffected by any other subsequent legislation. This symposium will not only explore the origins of tikanga Māori but perhaps, more importantly, consider the future role it may play in our legal system. With the attendance of our Pacific neighbors, where native customary law is in many cases more prevalent, much can be learned both from their experiences and our own over the next two days.
