Chris Finlayson: former Treaty Negotiations Minister on the Government's plan to remove tikanga from court rulings

The Government's open to legislating to over-rule court decisions on incorporating tikanga Māori.

That's from the Prime Minister - echoing comments last week from his Justice Minister. 

Paul Goldsmith claimed at a Law Association meeting that including concepts of Māori customs and values in law could cost the country investment.

Former Treaty Negotiations Minister Chris Finlayson says the Law Commission had been doing a substantial amount of work on tikanga.

"I would have thought that what the Crown should be doing is taking a good look at that report and trying to provide some definition of where and when tikanga would apply. So there's no point in just having a sort of group lamentation about it, it's within the ability of Parliament to knuckle down and do something about it."

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Episode Transcript

Speaker 1 (00:00):
Now the Justice Minister has indicated the government might overrule
court judgments on Teakunger. Paul Goldsmith has given a speech
in which he told lawyers he's worried that New Zealand
is developing our own bespoke legal system and that the
government is prepared to legislate over the top of this.
Chris fin Layson is a lawyer and of course former
Minister for Treating Negotiations. High Chris, Hi, Heather, how are
you well? Thank you? Now? What does it sound to

(00:21):
you like he's planning to do here? Is he planning
to clarify Teakunger or is he planning to kill off
Teacunger in law?

Speaker 2 (00:28):
Oh? Well, I don't think in fairness he's trying to
kill off Tea Kanger. I mean there are references to
Tea Kunger in statute. For example, Simon Upton put it
in the Resource Management Act in nineteen ninety one, and
everyone knows that Tea Kung is relevant to MARI customary
property rights. But I think the problem has been that

(00:51):
decision of the Supreme Court and Elis, which had absolutely
no MARI link at all, and you yet the court
held that's Tea Kung Mauri was relevant and deciding that
Alice's appeal against his convictions could carry on despite his death.
And so I think that's really where people have said
things have started to go a bit a miss.

Speaker 1 (01:12):
Do you think that they made the wrong call?

Speaker 2 (01:14):
Then no, well, I not necessarily the wrong call. They
should have left that issue to parliament because many years ago,
did you ever hear of Ian mackay, a very prominent lawyer.
He wrote a report, surprise surprise, it was called the
Mackaia Report on Defamation and one of the issues was
whether the representatives of a dead person could commence a

(01:35):
proceeding for a declaration that the dead person had been
defeint and Parliament, when it passed the Defamation legislation in
nineteen ninety two, did not do that. And so basically
what you've got with Alice, in my view, was a
bit of judicial legislation and that's what annoys legislators.

Speaker 1 (01:54):
So how would you tidy that up? Af you, Paul Goldsmith?
Would you put limitations on where t kunger can be used?
How do you deal with this?

Speaker 2 (02:02):
Well, when the Supreme Court decided Elis, the Law Commission
had been doing a substantial piece of work on tea
hunger and they produced a report it. It was by
Christian Fottter, who's now a judge of the Court of Appeal,
and it was a very good piece of work. I
would have thought that what the Crown should be doing

(02:22):
is taking a good look at that report and trying
to provide some definition of where and when tea hunger
would apply. So no point just sort of having a
group lamentation about it. Is within the ability of Parliament
to knuckle down and do something a data do you also.

Speaker 1 (02:39):
Chris, then have to define what the problem is that
I've had people on the show and I've said to them, okay,
define tea hung it to me in any number of circumstances,
How would it work, how would it apply? What is it?
And no one cares. It's a little bit. It's a wooly,
isn't it. So how do you actually define it?

Speaker 2 (02:56):
No? I would define it as sort of in a
sense mari common law, which applies in particular circumstances and
particularly in relation to customary rights. But I heard a
case about a case the other day where lawyers, of
course are inventive, and it was a case in the

(03:16):
employment Court and people started to raise a whole lot
of stuff about tea hunger. Well, you know, the Employment
Contracts Act doesn't refer to teacunger. It was a reasonably
straightforward case, but the issue was being confused by all
this stuff. So maybe it really is within the realm
of Parliament to sit down and do some work with us.

Speaker 1 (03:35):
Well in this case. Part of the problem here is
the uncertainty and that I don't know what it means.
Somebody else might have a completely different idea. Do we
need to write down what we understand tea kung it
to be and then refer to that.

Speaker 2 (03:45):
Well, I think that's what the Law Commission had been
doing in which Parliament hasn't packed up on. So you
should ask Goldsmith about the Law Commission report and what
steps has the Ministry of Justice taken to read the report,
understand it and have necessary implement.

Speaker 1 (04:00):
Fascinating Hey, thank you very much, Chris, as always really
appreciate your time. As Christphin Layson, lawyer and former Minister
for Treaty of White Tongy negotiations. For more from Hither
Duplessy Allen Drive listen live to news talks.

Speaker 2 (04:12):
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