6/04/2021·3 mins to read
A further fusion of tikanga Māori and common law? High Court decision upholds plaintiff’s mana
In the recent judicial review proceeding, Sweeney v The Prison Manager, Spring Hill Corrections Facility, the High Court took the novel step of issuing a declaration for the express purpose of upholding the plaintiff’s mana.
This decision comes at a time when the Courts are exploring the dynamics between tikanga Māori and the English common law in a range of situations, and could indicate a further fusion of tikanga Māori and Aotearoa’s common law.
- Judicial review in Aotearoa New Zealand may now consider an individual’s mana when granting declaratory relief where relevant
- The decision reflects the general direction the judiciary is taking towards recognising and upholding tikanga Māori as an “integral strand” of Aotearoa’s common law
- The Supreme Court is expected to release decisions regarding values and concepts of tikanga Māori later this year.
In Sweeney, the High Court found that a decision to revoke Mr Sweeney’s visitor approval at the prison was unreasonable, on the basis that the evidence before the Prison Manager did not rationally support the decision.
The interesting part of the High Court’s decision however was Palmer J’s consideration of the effect of the unlawful revocation on the plaintiff’s mana. His Honour concluded that upholding a plaintiff’s mana to vindicate their rights, was “fundamental to the rule of law”, and “can be a good reason for New Zealand courts to make a declaration in a judicial review case”.
The regard for mana follows the increasing recognition of tikanga Māori as an “ingredient” and “integral strand” of Aotearoa New Zealand’s common law. Palmer J noted that “where material to a case” there might be an obligation for the courts to recognise tikanga values in applying the law, and granting remedies.
Background to the decision
- Mr Sweeney was a drug treatment counsellor, contracted to work at Spring Hill Prison. He had a criminal history and previous ties to the Mongrel Mob. However Corrections took no issue with this in granting specified visitor approval to undertake work as he “was decades clear of addiction, criminal offending and involvement in the Mongrel Mob”.
- 18 months later however, Mr Sweeney’s visitor approval was revoked due to suspicions of an “active association” with the Mongrel Mob, and concerns raised by a visit to a self-care unit without satisfactory explanation.
- According to Corrections, social media posts by the plaintiff following the deaths of former friends who were members of the Mongrel Mob, and attendance at the tangi of one of them “presented a risk” to staff and prisoners. This resulted in revocation of the plaintiff’s visitor approval.
- Given the significant implications for the plaintiff, he sought review of the decision, seeking relief for the harm it has caused to his “reputation, mana, spiritual wellbeing … and physical health”.
Court’s review of the decision
- The Court found that the decision, based on concerns that Mr Sweeney maintained an active association with the Mongrel Mob, was unreasonable. The concerns were unfounded once Mr Sweeney’s explanations were properly taken into account. Outside the social media posts mourning the death of friends, there was no other information to suggest an “active association” with the Mongrel Mob.
- Similarly, the Court considered that Mr Sweeney’s explanations of visiting a prisoner to “pray”, in the absence of any investigation by Corrections, were highly compelling.
- The Court therefore found that no reasonable decision-maker could find that the plaintiff’s approval posed a risk to prison security. Instead, “proper application of the law required a different answer”.
- The Court then considered what, if any, relief should be granted. It granted a declaration that the revocation decision was unreasonable and therefore unlawful. The declaration was made “in order to uphold Mr Paul Sweeney’s mana, and vindicate his rights”.
There is increasing recognition by the Courts of tikanga Māori as forming part of Aotearoa’s common law. This appears to be the first case, in which an individual’s mana, has informed relief in judicial review proceedings. The decision may influence future cases to consider mana as an element of personal reputation.
The Supreme Court in the Peter Ellis case has recently considered mana in the context that it transcends death, and in the circumstances of that case, appellants – Māori and Pakeha – could have appeals heard following their passing. However, as acknowledged by legal counsel, mana is a complex concept that is difficult to “summarise”.
In Sweeney, Palmer J nevertheless found that there was “no need for involved definitions of mana” in the context. Rather, mana is considered a concept “implicitly understood” by Māori and now “most New Zealanders” as “leadership, authority, influence and prestige”. Some may debate whether this statement captures the full meaning of mana.
Therefore, Palmer J’s approach to recognising mana in this case raises potential questions as to how tikanga Māori should be applied by the courts, and can be contrasted with his earlier decision (in Ngawaka v Ngāti Rehua-Ngātiwai Ki Aotea Trust Board) in finding that a “court must be very careful about “finding” tikanga as a fact.”
The Court of Appeal in Trans-Tasman further identifies that it is important for decision-makers to engage with elements of tikanga Māori (such as kaitiakitanga) as understood and applied by Māori. For “that is the only perspective from which tikanga concepts can be meaningfully described and understood”.
The High Court’s decision therefore presents an issue for Māori: judges could be applying tikanga concepts from a relatively simplistic understanding, which would otherwise require ‘culturally safe’ processes such as wānanga, to fully explore. This is something the Courts will generally be aware of, and may require guidance from tikanga experts (or other sources, eg Kaumātua Committee) to avoid.
The decision, in any case, echoes Sir Justice Joe Williams’ Lex Aotearoa, which suggests that the law will enter a third phase: a fusion between the English common law and tikanga Maori, completely unique to Aotearoa. We look forward with interest of how this interesting area progresses with Supreme Court decisions in Ellis and Trans-Tasman Resources expected this year.
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 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board  NZCA 86
 Ellis v R  NZSC 89
 Kim Hill, Death, mana and Peter Ellis: lawyer Natalie Coates, Radio New Zealand (19 September 2020)
 Ngawaka v Ngāti Rehua-Ngātiwai Ki Aotea Trust Board (No.2)  NZHC 291, at . This decision found that independent arbitration was not the appropriate forum to determine whakapapa.
 Trans-Tasman Resources, above n 2, at .
 Ngawaka v Ngāti Rehua-Ngātiwai Ki Aotea Trust Board (No.2), above n 5.
 Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law”  WkoLawRw 2; (2013) 21 Wai L Rev 1.