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

handle is hein.journals/maori2003 and id is 1 raw text is: February 2003
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Judicial approaches to custom in the South
Pacific                                       1
Privy Council - 1958 decision re
evidence of custom                            4
Trustee meeting fees & company directorship fees 4
High Court - trespass on iwi administration
office, jurisdiction of the court             6
Employment Court - dismissal of M~ori worker,
protocol required                             6
Supreme Court Bill - debate                   7
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

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.

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

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ęCopyright 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
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
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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