If our Courts don’t get the point of a mihi, then will they get what is really being said in arguments over mana whenua or tangihanga practices? Or, why appearances in Te Reo are more than a question of linguistic choice.

Last week there was a bit of media reporting around a High Court hearing and the use of Te Reo Māori. It seems that a lawyer for the Crown introduced herself to the Court in Te Reo, and the judge had some issues with this – noting that under the High Court Rules 3 days notice was required if she wanted to speak in Māori and offering her an interpreter. The lawyer declined, translating the introduction herself and noting that it was standard practice of Crown Law to use Te Reo in this way. The reporting also suggests that the judge comes back to this later in the hearing as well.

Given other comments in the media, it seems I’m not the only lawyer who is a bit surprised to see this sort of thing nowadays.Even Court of Appeal judges note that it’s ‘routine’ for counsel to introduce themselves in Te Reo in the Court of Appeal and expect that to happen in the High Court.    

But I think this is about more than just simply the use of Te Reo in court. 

To me the real problem that this illustrates is captured in one of the exchanges between the judge and the lawyer. It particular, it’s reported that the judge asked the lawyer if she was making "political point” by using Te Reo ”because you are not using it as a means of communication. You are using it as a means of making a point”. 

Now of course the lawyer is making a point. That is what communication in any language is for. And making points is what a lawyer, in particular, is supposed to do.   Some people can communicate lots yet never make a point - but being able to make a point is sorta what you look for in a lawyer. 

The problem is that the point the lawyer is trying to make, and the point that the judge is seeing, are radically different. 

I suspect that the point that the lawyer was trying to make - by simply following Crown Law’s convention of using Te Reo to introduce herself to the Court - was something along the lines of respectfully acknowledging the Court, acknowledging how Crown Law sees itself as a Treaty Partner, and also that Crown Law sees the Court as being an institution that should be open to both Māori and Pākehā equally. All good points.  Bravo. 

Yet the judge seems to have not seen these points and taken the use of Te Reo as some sort of challenge to his authority or a bit of a wind-up.   

Why is that missing of the point so important?

It’s because what is actually being said is ultimately more important than how it is said and that ‘what’ simply wasn’t appreciated. It wasn’t picked up when a translation was provided, and it would likely not have even been picked up if the process in the High Court Rules was followed and three days formal notice was given and a translator was on hand. And that the Court didn’t get the point that was being made is deeply sad. 

But it’s also an issue because increasingly the Courts are being asked to consider matters of tikanga. And places like the High Court are being asked to do so not just by the parties coming before them, but also by the higher Courts that sit above them and over turn decisions that don’t properly wrap tikanga based concepts into their decision making.   

Some of those decisions potentially affect all of New Zealand too, not just Māori. They range from the geeky, technical, legal questions like the relationship between Parliament and the Courts (as in Ngāti Whātua v A-G) to really personal stuff like who gets to make decisions about our bodies when we die (as in Takamore v Clarke).  

And fundamentally tikanga is about ‘the point’ - about what it trying to be achieved or what is the right thing to do.   It’s not necessarily about the language that point is made in (though it clearly helps). 

So if our Courts don’t get the point of a mihi then will they get what is really being said in arguments over mana whenua or tangihanga practices? The reo can be easily translated, the tikanga is harder.

If our Court system is going to live up to the challenge that the Supreme Court is increasingly setting it of looking to tikanga as a source of common law and legal principle then understanding the ‘why’ is even more important that a grasp of the words themselves. 

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