An open letter to The Law Association

13 May 2024

To: The Law Association Council

 An open letter to The Law Association from Kingi Snelgar[1]

On 3 May 2024, LawNews, the weekly newsletter for Law Association members, published an article by Gary Judd KC titled “Senior King’s Counsel files a complaint about compulsory tikanga Māori studies for law students.” The article summarises the author’s complaint against including tikanga in the law school curriculum from 2025. Mr Judd KC opines why he considers tikanga not law and should not be compulsory.

Several members of the legal profession, including myself, have expressed deep concern about the publication of this article on the cover of LawNews and the absence of a comprehensive rebuttal to Mr Judd KC’s opinion piece. A balanced response is not only a matter of professional responsibility but also shows a commitment to fairness and respect for diverse viewpoints. It is these principles that underpin the credibility of The Law Association.

On 9 May 2024, Te Hunga Rōia Māori o Aotearoa issued an open letter responding to Mr Judd KC’s opinion piece. This letter, far from being a mere reaction, presents a well-reasoned argument to Mr Judd KC’s position. It highlights legislation and several cases demonstrating the recognition of tikanga Māori as law since at least 1858. Such contributions are not just valuable, but they are the cornerstone of fostering a more informed and nuanced debate on this issue.

The recognition of tikanga Māori as law has not only been a historical fact but continues to hold true in modern cases, including by the Supreme Court in Ellis, Takamore, Trans-Tasman Resources and Smith. Tikanga issues are across nearly all areas of law, including judicial review, trust law and a recent leading employment case, GF v Comptroller of the New Zealand Customs Service. This reaffirms the importance and relevance of tikanga Māori across various areas in our legal system, a fact that we all should be aware of and respect as a body of legal professionals tasked with understanding, interpreting, arguing and applying the law.

Tikanga is not just part of the common law of Aotearoa; it is included in legislation such as the Resource Management Act 1991, Education and Training Act 2020, Oranga Tamariki Act 1989 and te Ture Whenua Māori Act 1993. However, the absence of a direct reference to tikanga in legislation does not mean it is irrelevant. The Legislation Design Advisory Committee guidelines require those drafting legislation to consider whether the proposed bill would affect any practices governed by tikanga, emphasising the importance of diverse opinions in shaping our laws. To this end, like Huakina and the relevance of Te Tiriti as an interpretative aid of legislation (even where no express Treaty provision exists in the relevant Act), an argument could be made that tikanga is an interpretive aid to colour the interpretation of legislation.

Finally, the Law Commission’s Report He Poutama released late last year extensively covers how tikanga applies across various areas of law. The Report is substantial and thorough. 

On 10 May 2024, in response to Mr Judd KC's original article, LawNews published a further opinion piece by former District Court Judge David Harvey as its cover article, titled “A reasoned defence of free speech.” The Law Association's LinkedIn page published the article titled “Why you can’t try to censor opinions you despise and still claim to support free speech.” Later, in the LawNews publication, a further opinion piece from Mr Judd KC was published.

The purpose of Mr Harvey’s opinion piece was not to offer a balanced response to Mr Judd KC but to provide a free speech defence coupled with some interesting comments about the Doctrine of Discovery. The article was primarily a rebuke of my LinkedIn post, with some chastising comments for Professor Khylee Quince (who was named, but I was labelled Barrister X). I note that the purpose of my LinkedIn post was to raise concerns about Mr Judd KC’s opinion being published as the cover article without a balanced response.

It is crucial to emphasise that fair representation of opinions is a cornerstone of our profession. While I don’t agree with either Mr Judd KC or Mr Harvey, I acknowledge their right to express their views. Indeed, freedom of expression is fundamental to a free and democratic society. At the same time, we have professional obligations to understand and observe the rule of law. Tikanga Māori is law according to what our Courts and legislation say, and the issue is whether LawNews took a fair, accurate, and balanced approach to my concern about the opinion it published.

Publishing opinion pieces in a professional legal newsletter must occur ethically and accurately.  Both articles should meet basic standards of rigour and analysis. I don't think either did so, and so I just want to highlight a few issues for you to consider.

Mr Harvey refutes the Doctrine of Discovery's relevance in Aotearoa and perhaps its impact on indigenous peoples by referring to a blog from Professor Paul Moon. I note that I was a member of the tangata whenua caucus that assisted the Human Rights Commission with the 162-page report called Maranga Mai. It is this report that Professor Moon, a Pakeha historian with no legal training, is responding to. In his opinion piece, Mr Harvey copied and pasted large parts of a blog post from Professor Paul Moon without proper references.[1] Copying and pasting a blog post is a poor attempt to engage with the issue and shows the author's lack of expertise in indigenous legal issues. I've included below a highlighted review of where Mr Harvey has copied parts of the blog in its entirety.  Mr Harvey would have been better served by focusing on the issue of freedom of expression, an area he is an expert.

Mr Judd KC failed to engage with how our Courts and Parliament have expressed tikanga Māori as relevant across various areas. He also failed to consider how excluding tikanga as part of the law degree interacts with our obligations under the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008. What would Mr Judd KC suggest we do, for example, if a client had a legal issue with some tikanga aspect? Would his answer be to turn them away because he doesn’t see tikanga as law? How does that fit our client care obligations or the cab rank rule? Would you not argue for issues in equity if it was in your client’s best interest to do so? One could argue that refusing to act for a client with a tikanga issue raised because we don’t believe it is law could breach our professional obligations. Another option in this situation could be to refer the issue to someone with expertise in tikanga. So, suggesting that tikanga is not law could be considered irresponsible in light of our professional obligations. LawNews and its editorial team are also responsible for carefully reviewing the merits of opinions, given our ethical and professional landscape.

Learning about tikanga is not just an esoteric matter but ensures that the next generation of lawyers is best equipped to represent their clients' interests. As the Māori population increases, together with the growing commercial influence of Iwi, legal disputes with issues of tikanga will increase. Therefore, tikanga as part of the curriculum makes sense to future-proof our rapidly developing legal landscape.

On LinkedIn, the editor of LawNews, Jenni McManus, has made several comments in response to members' concerns, including suggesting that members “put their money with their mouth is” by writing a response and that the concerns raised on LinkedIn were “bile on social media”.

There was one exchange where the editor insinuated that perhaps one of the commentators was not clever enough to understand the messages from Mr Harvey. One excellent comment from Barrister Kellie Arthur from an exchange with the editor captured my concern with this response:

 “1. As the editor of Law News, you must have recognised Judd KC’s opinion piece was controversial - you certainly saw it as click-bait worthy, given you ran it on the cover  

2. As such, you must have appreciated that extra care ought to be taken to provide a counterpoint to such a piece for your readers in the following issue of Law News  

3. You received a well-researched, accurate, considered letter from Te Hunga Rōia Māori o Aotearoa in response to the complaint from Judd KC  

4. Rather than delay the distribution of Law News (if required, to include Te Hunga Rōia Māori o Aotearoa’s letter—which you say was received some hours after the deadline), you chose to run the Harvey opinion piece as a follow-up piece to Judd’s piece, which doubled down on the original piece.  

If Te Hunga Rōia Māori o Aotearoa’s letter was the only response in opposition you received (or, as you seem fond of saying - the only people “putting their money where their mouth is”), maybe you should reflect on that?  

When you characterise opinions of people who disagreed with Judd’s opinion, as published in Law News, as “bile on social media”, perhaps people don’t see Law News as the neutral, balanced, legal publication you profess it is?”

It was certainly open to LawNews to delay its publication deadline, given the importance of responding to Mr Judd KC in light of concerns about the lack of balance. Further, the editor should have foreseen the contentious nature of Mr Judd KC’s opinion piece and identified an alternative view. For example, Te Hunga Rōia Māori published an open letter; Professor Carwyn Jones provided a well-written response on that same day on The Spinoff.[2] But instead, an op-ed was published to defend Mr Judd’s freedom of expression and to chastise my concern.

I have received complaints from several lawyers who have previously raised issues with LawNews as a platform that needs to provide diverse perspectives. Please take a look at all recent complaints to see if any patterns have emerged.

The Law Association, a professional body representing lawyers across Aotearoa, says it is committed to diversity and to Te Tiriti o Waitangi. Law News represents its weekly opportunity to affirm those commitments. I hope that the elected representatives of the Law Association review this complaint with pono, aroha, and manaaki. I also hope our profession continues to debate these issues in a way that upholds balance, fairness, and the rule of law.

Finally, I would be pleased for this letter to be published in the next Law News.

Naku iti noa,

Kingi Snelgar

Highlighted in bold are the parts Mr Harvey has copy pasted into his opinion piece. Parts in italics are paraphrased parts of the blog.

Professor Moon points out: The ‘doctrine’ itself derives from a sentence contained in a Papal Bull issued in 1493 by Pope Alexander VI. The Bull’s purpose was to support Spain’s wish to assert exclusive rights over certain territories discovered by Christopher Columbus the previous year. The Bull set out the specific locations (one hundred leagues west of the Azores and Cape Verde Islands) that would be assigned solely to Spain and imposed a prohibition on other Catholic states approaching those territories without Spanish approval. The Vatican’s view was that any territories outside of Europe that were not inhabited by Christians were open to claims of ‘discovery’ (and implicitly, some form of sovereignty) by whichever Catholic power reached these territories first.

This is the essence and extent of what later became known as the Doctrine of Discovery.

‘Preposterous’ interpretation

What has happened since, according to Moon, is that lawyers have resuscitated the idea that the Doctrine of Discovery guided European colonisation for four centuries.

But as Moon suggests, this claim is preposterous to anyone familiar with the way in which various European states – especially Britain – developed their colonial policy in the 18th and 19th centuries.

Britain’s colonisation of New Zealand was never based on the principles of assertion of territorial sovereignty over a colony and the subjugation of indigenous populations.

Moon points out that Britain knew about New Zealand’s location from the late 1640s but sent an expedition to the country only in 1768. It was not until 1840 that Britain (only reluctantly) asserted sovereignty over its people living in the territory.

This lethargy is hardly the behaviour of an avaricious colonial power, intent on devouring territory to rule over.

Although Hobson’s proclamation of May 1840 – ‘I…assert…on the grounds of Discovery, the Sovereign Rights of Her Majesty over the Southern Islands of New-Zealand’ – looks like proof of the Doctrine of Discovery in action, it is not because it ignores the context surrounding the making of the proclamation.

Fabricated claims

Moon cites several other reasons which expose claims that the Doctrine of Discovery (if it still existed) affecting New Zealand’s colonisation was fabricated. n summary these are:

·         By the time  Britain commenced colonising New Zealand, it had severed any ties with the Catholic Church for centuries, and any Catholic influence was actively repudiated.

·         Britain’s imperial expansion in the 18th and 19th centuries lacked adherence to any doctrine. The empire was acquired ‘in a fit of absence of mind’, as John Seeley famously observed in 1883.

·         The motives behind the Doctrine of Discovery were religious and territorial. British colonisation, on the other hand, was largely secular and focused  primarily on trade instead of territory.

·         The doctrine was devised for a specific region, of which New Zealand was not a part, for a colonising power which never had any territorial claim to New Zealand and at a time when New Zealand’s existence was unknown to Europe.

·         There is no mention of the Doctrine of Discovery in any British government document relating to New Zealand’s colonisation – neither directly nor implicitly – and neither did its precepts form part of British policy in this period.

·         In the approximately two years leading up to New Zealand’s cession of sovereignty in 1840 via the treaty, British policy on the territory was developed on principles that contravene the central tenets of the Doctrine of Discovery. This is especially important because it negates the argument that somehow, the general sentiment of the doctrine embedded itself in British colonial policy in the 19th century as a precursor to New Zealand’s colonisation.

[1]https://plainsight.nz/the-doctrine-of-discovery-in-new-zealand-a-fresh-historical-conspiracy-theory/

[2] https://thespinoff.co.nz/politics/09-05-2024/tikanga-is-the-first-law-of-aotearoa

[1] All views expressed are my own. Apologies for any mistakes.