Tikanga (Maori protocol) was one of the submissions advanced by Mr Ellis’ legal team as they sought to convince the Supreme Court to firstly hear the appeal at all, before then judging its merits.
Although Mr Ellis was not Maori, a majority three out of five justices agreed that wrongful conviction was harmful to his mana, even though he has since died.
A tikanga approach recognised that hara (harm) to Mr Ellis could exist, and that tikanga could be used to attempt to achieve a state of ea (resolution).
All five judges accepted that tikanga was an acceptable ground on which to advance a case.
Otago University law professor Jacinta Ruru said that yesterday’s judgement was a significant decision which built on cases decided over the past 45 years.
"It’s another decision that tikanga Maori is the first legal system of Aotearoa New Zealand," Prof Ruru, who has written extensively on tikanga Maori and the law, said.
"It recognises that there are two systems of law in Aotearoa New Zealand and that they are in dialogue with one another.
"We can all learn from one another, one another’s values and laws.
The Supreme Court’s decision today is simply reinforcing that this dialogue is good and relevant for us as a nation."
In their minority judgement, Justices Mark O’Regan and Terence Arnold did not consider the Ellis case a suitable case for the court to make any pronouncements of a general nature about the place of tikanga in New Zealand law.
However, Justice O’Regan said: "We accept the essential proposition that tikanga Maori has been, and will continue to be, recognised in the development of the common law of New Zealand in cases where it is relevant to the matters in issue."
In the majority, Chief Justice Helen Winkelmann and Justices Joe Williams and Susan Glazebrook accepted that reaching a state of ea was desirable in assessing the interests of justice, and that tikanga required that the process started by the grant of leave to appeal should be allowed to continue.
Justice Glazebrook said that isolating tikanga principles for separate consideration was not appropriate, but that relevant tikanga principles should be able to be taken into account by the court.
Tikanga was a feature in early New Zealand court cases, some of which did not include any Maori litigants. The case of James Takamore, whose body was taken from his Christchurch home to be buried on Ngai Tuhoe land, against his and his widow’s wishes, elevated the place of tikanga in modern law, and the concept has since been used in regulations and in several pieces of legislation.
Justice Williams said that it was to the credit of all parties that they had thoroughly explored the issue of tikanga, including holding a wananga (gathering) which had generated a statement on tikanga.
"Tikanga will be relevant when the facts suggest it is and the common law has not otherwise excluded it," he said.
"The more difficult task is in determining the weight the relevant tikanga principle should carry in the determination ... the best guide will be context."
Prof Ruru said that the Supreme Court had provided valuable guidance and insight for lawyers and judges, and emphasised that they must use processes and practices that helped preserve the integrity of tikanga as a cohesive system of substantive law and legal process.
"It is a really helpful decision for us in the legal profession, and especially for us in the law school as we take on the responsibility to prepare the next generation of lawyers to be able to confidently think about the intersection between our two nation’s founding legal systems."
