Ko te reo kia tika – te reo Māori in legal documents

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Te reo Māori has been prominent in legislation and government policy for a number of years and is starting to become more frequently seen in contracts and statutory documents for different organisations, including terms like kaupapa, hui-ā-iwi and tikanga o te ao Māori.

Recently, the Economic Development, Science and Innovation Select Committee released their final report on the Incorporated Societies Bill and recommended that it be passed.

In the bill’s first reading an MP noted that vehicles for iwi and hapu representation, such as incorporated societies, have not been fit for purpose and as a result have caused needless disagreements and litigation.

The select committee recommended that a new clause 118A be inserted to clarify that nothing in the bill would prevent a society from keeping its records or documents in te reo Māori. This clause is likely to have been directed at making incorporated societies more fit for purpose, but there may be little practical effect given that te reo Māori is already being used in these kinds of documents.

It is great to see New Zealand embracing te reo Māori in all contexts and we’d like to see this continue to expand further into the legal industry. However, when using te reo Māori it is important to use it correctly so as to uphold its mana and integrity. With that in mind, here are some things to consider when incorporating te reo Māori into legal documents.

Context

The Māori lexicon is currently developing and expanding to meet contemporary needs and contexts. For example, the Reserve Bank of New Zealand recently commissioned a financial glossary of proposed wealth and investment vocabulary in te reo Māori.

Te reo Māori is very contextual and often a word can imply a number of meanings. For example the word ‘whakaaro’ can be interpreted as ‘thought’, ‘opinion’, ‘idea’, ‘understanding’ or ‘intention’ depending on the way in which the speaker uses it.

In legal documents, document drafters may rely on subtle distinctions in English words (for example ‘shipped’ and ‘transported’) for specificity. Document drafters utilising te reo may use a word with a broader meaning and rely on the surrounding context to clarify its specific effect.

To illustrate this, the word ‘whakamutu’ on its own could mean ‘ceasing’, ‘desisting’, ‘concluding’ or ‘liquidating’. But, for example, where there is surrounding context referring to the failure of another party to carry out its obligations or a breach of the agreement, the context gives the word the particular legal meaning of ‘termination’.

Contractual interpretation for legal documents in English is guided by a number of principles that rely on taking an objective approach to the interpretation of contracts, and using extrinsic evidence (such as pre-contractual negotiations and subsequent conduct) as an aid in interpretation only if the meaning of the words used is ambiguous.

The same principles are likely to apply to contractual interpretation of te reo Māori terms and phrases but with perhaps even more scope for debate as to the intended meaning of a word. It is therefore even more important to draft in a way which is clear and avoids ambiguity.

Mutual Understanding

Context, as mentioned above, is especially important for te reo Māori terms that are intended to have a specific legal effect as they would in English.

On the flip side, there are some words that are intended to have an entirely Māori meaning without an exact English equivalent. New Zealand is becoming increasingly more familiar with Māori terms and it is foreseeable that in the near future words like mana, kaitiakitanga, whanaungatanga, taonga and tapu will not require general definitions or clarification.

What may require clarification is the intended practical legal effect of these tikanga terms in the context they’re used in. For example, kaitiakitanga can mean ‘strict preservation’ in one context and ‘sustainable development’ in another without any contradiction in Māori.

It is important to ensure that both parties have the same level of understanding of key tikanga Māori terms. One party may have been exposed to these words in limited or specific contexts and, as a result, have a narrow understanding as to what they mean.

Both parties need to have a mutual understanding of the meaning of these terms in the context they are being used in. This may require one side to upskill, learn more about these terms or seek expert advice.

Importing cultural concepts

Te reo is the gateway to the Māori world. This means that many tikanga concepts and ideologies are woven into te reo Māori phrases. An example of this is the phrase ‘kanohi ki te kanohi’, which is becoming more frequently seen in dispute resolution clauses.

While kanohi ki te kanohi is regarded as referring to face to face meetings, it also relates to the mana of the person and their credibility with words, actions and intentions. The kanohi ki te kanohi concept implicitly carries the ideology that a person is ‘fronting up’ and there is an expectation that the speaker will stand by their words in order to maintain their integrity and credibility.

Many organisations already operate on a values-based approach, and so these cultural elements may be desirable. A 2019 study by AUT found that organisations that incorporate te reo and tikanga Māori benefit from improved cultural satisfaction and increased job satisfaction.

It may be the case that one party to a contract is aware of the cultural elements of phrases such as kanohi ki te kanohi, and the other is not. It is important to ensure that both sides are on equal footing in terms of both their understanding of te reo Māori and their understanding of the principles of contractual interpretation.

Primacy

In many overseas jurisdictions where there is more than one official language, it is very common to have documents produced in two languages. Typically, both versions will specify clearly which is the original language and will take precedence in the event of conflict or discrepancy. In any event, both versions of the document can inform and aid in interpretation of the other.

Conclusion

The common law has spent a very long time whittling English words down into precise legal meanings. Te reo Māori is equally capable of being the primary vehicle for law in the same sense as English, and more frequent use in legal documents will afford New Zealand the necessary competency to understand the precise legal meanings in te reo Māori.

Te reo Māori is part of the legal fabric of New Zealand and we are already seeing it being woven into government policy, legislation and statutory documents. When incorporating te reo we should keep the following things in mind:

  1. Context is important
  2. Parties need to have a mutual understanding of terms
  3. Cross-cultural differences can affect interpretation
  4. Consider which language takes primacy

Kia kaha tātou ki te kōrero Māori, ko te reo kia tika i ngā horopaki katoa!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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