Monthly Archives: September 2023

Among the worst offenders are three judges of the Supreme Court
of New Zealand, Joe Williams, Chief Justice Helen Winkelmann and

Susan Glazebrook who, in the Peter Ellis appeal of 2020, said that
“tikanga was the first law of New Zealand” which, as this chapter
shows, is not true.

Williams is the first part-Maori judge of this, the highest court in
the land since the Labour government of Helen Clark so unwisely
ended our age-old right of appeal to the Judicial Committee of the
Privy Council in London – a more objective and competent court
than the gimcrack institution that replaced it. Williams is a former
chairman of the Waitangi Tribunal, where he “distinguished” himself
by enthusiastically pushing the WAI 262 Report, recommending that
ownership of all New Zealand’s native plants and animals be taken
away from the public and handed over to that small group of New
Zealanders who can claim a smidgeon of Maori blood. This Report is
the epitome of racism, vengeance, nastiness and theft.

In a 2013 speech titled Lex Aotearoa, Williams “described tikanga
Maori as Aotearoa’s first law; for 700 years it governed society on our
islands. When English colonisers imported their common law system –
Aotearoa’s second law – tikanga was mostly pushed aside. The Treaty
of Waitangi was supposed to bring the two systems together.” ²⁰

This is completely untrue. Tikanga was not a system of law before

1840. It was merely a word for the customs of various tribes and it
differed from tribe to tribe, from place to place, and from time to time.

Tikanga was more a collection of cultural habits of these Stone Age
people and it was heavily laced with revenge (utu), superstition
(tapu), plunder (muru), violence and bloodshed. In an 1825 meeting
at Kerikeri between missionaries and seven leading Ngapuhi chiefs
Hongi Hika “described how the imperatives of tikanga prevented
them from giving up war as a way of life.” ²¹ Is this what Williams
wants? A “system of law” tikanga certainly was not. It did not have
courts, cases, precedents, clarity or consistency. Or even writing!!!

“We do not want to share the failure of current law, where key words
such as tikanga shift around, with the meaning chosen according
to the requirements of a Maori litigant. It is poor law when groups

can plunder the public purse behind a smokescreen of ambiguous
language,” wrote Dr. John Robinson in When Two Cultures Meet; the
New Zealand Experience. ²²

And as for Wiliams saying that the Treaty of Waitangi was meant to
bring this non-law system of tikanga together with the common law;
that is not only false but utterly preposterous as the whole point of the
Treaty was to bring to New Zealand a system of law that hitherto it
had not had. There is not a single word in the Treaty or its Preamble
that states or even implies that tikanga was to have any place in the
new British colony. Even if tikanga was a “system of law”, it could not
co-exist with English common law since it is not possible to have two
different systems of law operating side by side in the same jurisdiction.

Despite being ruled by the same monarch since 1603 and being the
same nation since the Act of Union of 1707 England and Scotland
have different systems of law – the common law in England and an
amalgam of common law and Roman law in Scotland. Completely
separate jurisdictions. No one has ever tried to run them together as
that would never work. It would work even less were English common
law in New Zealand to run side by side with the non-law system of
tikanga, which is not much more than the primitive practices and
beliefs of pre-1840 tribal witch doctors.

In making the false assertion that tikanga was a system of law Williams
was either woefully ignorant of the law, history and constitution of
New Zealand or he was being deliberately deceitful. In either of these
events it is questionable as to whether Williams is a fit and proper
person to be a lawyer, let alone a judge.

Williams tried to introduce the fiction of tikanga in the Peter Ellis case
in the Supreme Court and was supported in his error by another judge,
Susan Glazebrook. In this case these ignorant and mischievous judges
applied the non-law tikanga instead of our common law – “the greatest
disgrace in our legal history” (Sir Robert Jones) while prominent
lawyer and ex-ACT M.P., Stephen Franks, said, “They [the judges]
have made, without any mandate from the people they now intend to
rule, the right to make law. They are judges who want to be kings.” ²³

And, just as cancer spreads, so too does this judicial falsehood that
tikanga was a pre-1840 “system of law”.

In the High Court case of Edwards (claims by tribes for large swathes
of foreshore and seabed in the eastern Bay of Plenty) Judge Peter
Churchman ignored the clearly stated intention of the democratically
elected Parliament of New Zealand by putting the non-law tikanga
above the requirement in the Marine and Coastal Area Act (s. 58) that
a claimant must prove that its members have “exclusively used and
occupied their claimed area from 1840 to the present day”.

“Up until the assertion of sovereignty by Great Britain in 1840 the sole
system of law in New Zealand was tikanga Maori,” he falsely asserted
before waffling on about the “earth mother” and the “sky father”……
“with the earth being created when these two were thrust apart by their
children” and other such juvenile Maori witch-doctory which should
have no place in a modern court of law. By basing his judgement on a
fictional “system of law” that never existed Churchman’s whole rotten
judgement seems to be based on a lie.

Since the claimants could not succeed in accordance with the clearly
stated words of the Act, that should have been the end of it. Instead,
Churchman said, “The task for the court in considering whether the
requirements of s. 58 (1) (a) of the Act have been met is therefore not
to attempt to measure the factual situation against Western property
rights or even the tests at common law for the establishment of
customary land rights. The critical focus must be on tikanga and the
question of whether or not the specified area was held in accordance
with the tikanga that has been established.”

He then passed the whole thing over to a couple of part-Maoris, Hiria
Hape and Doug Hauraki, who are not part of the justice system but
who have spent their careers in advancing Maori culture and Maori
interests, as to whether these applicants, who failed to succeed under
the Act, held their claim “in accordance with tikanga”. So, why do
we have judges on Churchman’s salary of $471,100 plus unbelievable
perks when the case can be more or less decided by two outsiders?

In the words of former judge, Anthony Willy, commenting on this
judgement, “It is simply not tenable to import spiritual beliefs and
ancient codes of conduct into the fabric of the contemporary common
law of New Zealand. The law must be certain.” ²⁴ In the not too
distant past New Zealand had judges – like Judge Willy – who knew,
understood and valued the law. Now we have types like Churchman
who ignore the law and in the process take away the rights of the
people of New Zealand so as to indulge the greedy claims of small,
private groups of iwi. Churchman’s mistake was based on the premise
that tikanga was a system of law when it plainly was not.

Another deeply flawed judge who ties his flag to the non-law system
of tikanga rather than to our tried and tested common law is Grant
Powell who, before he became a judge was deeply involved in acting
for claimants to the Waitangi Tribunal. One has to wonder whether he
was the best choice to be the judge in the case of Reeder and Others,
dated 12th October, 2021, which gave some tribal groups rights of
customary marine title to the coast near Tauranga.

Powell also ignored the Marine and Coastal Area Act and said that
the test of whether the claimants could prove exclusive use and
occupation of the claimed area must be viewed “through a tikanga
lens that reflects the continuity of customary relationship with the
land” and that the nature of tikanga colours the words”, thus allowing
a lower threshold than in the Act. ²⁵

He really gave the game away and seems to have exposed his own
bias when he said that the court must take a protective approach to
customary rights and interpret these liberally in favour of indigenous
groups (and against the rest of us). The Act does not say that. This
judgement is every bit as dodgy as that of Churchman and does
nothing to arrest the rapidly sinking trust in the judiciary by ordinary
New Zealanders who have had their traditional rights shafted in so
many ways by defective, if not biased, judges.

This nonsense and injustice of accepting tribal hearsay stories in
violation of the well-established rules of evidence was even applied
to private property in the case of Raikes v Hastings D.C. et al. (23

November, 2022) by High Court judge Christine Grice. She restricted
the use of land on a private farm on the mere hearsay of a greedy
bunch of 21st century Europeans with a small amount of Maori blood
in them masquerading as a “tribe”.

Without critically evaluating their “evidence” (tribal sayings and
songs, proverbs and carvings), she accepted or did not discard their
uncorroborated stories in support of their claim, including the lie that a
tohunga once threw a stick up to the top of a mountain, which accepted
this “gift” which then caused a proliferation of bird life, which caused
the “tribe” centuries ago to walk across the Raikes’ farm. In taking
the side of these shameless opportunists Grice violated the property
rights of the owners of the farm. Such are the depths of ignorance and
backwardness that our once rational and trusted law have reached on
the watch of types like Christine Grice.

These judges – Winkelmann, Williams, Glazebrook, Grice, Churchman
and Powell – are playing fast and loose with the law so as to advance
the interests of one minority race group at the expense of all other
New Zealanders. The whole basis of law is being overturned by judges
who are effectively carrying out a coup d’etat against both the law and
the constitution. The function of a judge is to apply the laws that are
enacted by the democratically elected Parliament and not to make the
law and certainly not to break the law. They have discarded the very
law which their oaths of office require them to uphold. They need to
be reminded of their proper function very forcefully if they are not to
become the enemies of freedom and democracy.

In choosing to ditch tikanga, utu and other forms of violence, and
embrace for the first time a system of law that provided enforceable
personal and property rights, the chiefs of 1840 were acting wisely; in
fact, they were going for the top prize in exchanging their Stone Age
culture for the legal system of England that was the most advanced
and civilised in the whole world and which placed more importance
on individual rights and humane values than any other. The rigid
Code Napoleon of France was not – and still is not – a better system
than English common law. As Sir Apirana Ngata said in his speech at

Waitangi on the centenary of the Treaty in 1940, “Let me acknowledge
first that, in the whole world I doubt whether any native race has been
so well treated by a European people as the Maori.”

It beggars belief that, after nearly two centuries of living successfully
and prosperously under English common law, a clique of out-of-
control judges like Winkelmann, Churchman, Powell, Williams and
Glazebrook should try to reverse the wisdom of the chiefs of 1840 by
falsely insisting that tikanga was a “pre-1840 system of law.”

In the words of John Robinson, “The Maori were fortunate that it
was the British, at that time when the ideas of equality and universal
humanity were flourishing, who were the dominant new force in the
South Pacific. There were many people who would have used their
superior weapons to kill them and take their land without a second
thought, to conquer and enslave them (Cortez in Mexico, Pizarro in
Peru and the Belgians in the Congo), slaughter them (as Alexander the
Great did to all who opposed him, as Maori did in the Chathams). If
we consider all societies throughout history – like the Spanish in the
seventeenth century – the British were remarkably considerate.” ²⁶

Article 3 of the Treaty of Waitangi gave all the people of New Zealand

native and settler – all the rights of British subjects and so liberated
the natives from a state of fear and anarchy – something that Joe
Williams, Grice, Glazebrook, Winkelmann, Churchman and Powell
should be celebrating instead of trying to switch the clock back to a
past that no one except those of ill-will could possibly want.

The rule of law not only guarantees individual rights such as habeas
corpus and free speech but, through the law of contract, etc. has
provided the foundation for the economic growth and improvement in
living standards that have transformed New Zealand into the modern
and comfortable society that we know today. As Apirana Ngata stated,
“British law has been the greatest benefit bestowed by the Queen on
the Maori people”. ²⁷ Not tikanga which, based on the power of the
chief and the emotion of the tribe, does not recognise personal rights,
private property or any civilised standards of behaviour and which,
in its application, crushes the individual. The facts are very simple.

Before 1840 there were no laws or system of law in New Zealand;
since 1840 all New Zealanders have lived under English law, the
finest system of law yet conceived by man. It is a treasure that must
be preserved.