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2003-2004 Maori L. Rev. 1 (2003-2004)

handle is hein.journals/maori2003 and id is 1 raw text is: February 2003 0dn'a Re0* '* CONTENTS CUSTOM LAW AND COMMON LAW Judicial approaches to custom in the South Pacific 1 Privy Council - 1958 decision re evidence of custom 4 MAORI LAND COURT & APPELLATE COURT Trustee meeting fees & company directorship fees 4 OTHER COURTS AND TRIBUNALS High Court - trespass on iwi administration office, jurisdiction of the court 6 Employment Court - dismissal of M~ori worker, protocol required 6 PARLIAMENT Supreme Court Bill - debate 7 CUSTOM LAW AND COMMON LAW Below are reviews of two items dealing with custom law and the way in which it is or should be treated in common law courts. The first is a recent academic article assessing the performance and approach to custom of courts in the Pacific Islands. The second is a Privy Council judgment of 1957 on the approach to be taken when deciding customary disputes. That approach is noted and criticised in the academic article. The Privy Council decision does not appear to have been quoted in any judgment ofa NZ court. Disclaimer: The information contained in this publication is a summary only. You should seek professional advice before taking any action in relation to matters dealt with in this publication. No responsibility is accepted for any loss arising from reliance on information in this publication. Ekow. Tom Bennion PO Box 23280 Cable Car Lane Wellington, New Zealand Phone (04) 473 5755 Fax (04) 473 5751 Email tom@bennion.co.nz Resem e Rebecca Paton, Geoff Melvin Tom Bennion PO Box 23280 Cable Car Lane Wellington, New Zealand North nrcnSales Gaunt Publishers 3011 Gulf Drive Holmes Beach Florida 34217-2199, USA Fax (813) 778 5252 Phone (813) 778 5211 IraTet Web Site. www.bennion.co.nz ©Copyright Tom Bennion 2003 This issue may be cited as: Maori LR February 2003 ISSN 1172-8434 'Barava Tru': Judicial Approaches to the Pleading and Proof of Custom in the South Pacific Jennifer Corrin Care and Jean G Zorn. International Law Quarterly, Vol 51, July 2002pages 611-639 'Barava tru' is pidgin for really true or very true. This article examines the treatment of custom in common law and colonial courts. How custom is changed by courts Martin Chanock's writing about the transformation of customary norms into law form the backbone of Jean Zorn and Jennifer Corin Care's analysis of custom and law in the South Pacific. Chanock discusses the differences between customary norms of traditional cultures and the legal rules recognised in state courts in Southern and Central America. Zorn and Care draw a comparison with the Pacific situation, as in both regions the customs of indigenous peoples' have changed radically in response to the process of colonisation. They start from Chanock's central premise that in order for custom to play a positive role in Pacific Island legal systems, it cannot be taken for granted. In order to give effect to the role of custom, it must be incorporated into the legal system. The challenge for Pacific legal systems is therefore to incorporate custom (a fluid, changing thing) into colonial law. To address this, the writers focus on some of the processes by which custom changes in response to the state court requirement that custom be pleaded and proved. According to Zorn and Care: Simply by the act of moving dispute settlement from the privacy of discussions and negotiations between the disputing parties and their families to a public forum controlled by public officials, customs in colonised countries changed. They argue that customary norms act as counters and benchmarks in the negotiation process. As a result, there can be in custom many norms, all seemingly applicable to the same circumstances. Having a range of norms helps to resolve disputes by allowing participants to call upon those that best fit the moment, thereby enabling there to be a settlement between the parties that serves both principle and the needs of the parties, as well as reasserting harmony within the group. In colonial or common law, however, there is usually only one rule applicable to the situation and it will apply regardless of relations between the parties, their relative status and power, or the needs of the group, because the

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