Kris Faafoi instructs Law Commission to Review tikanga Māori in our law

The Government is embarking on a landmark review of the role of tikanga [customs] and how Māori concepts apply in our law. The recommendations could have widespread implications, including the extent to which tikanga applies beyond the world of Māoridom.

Justice Minister Kris Faafoi recently instructed the Law Commission, the government agency tasked with regularly reviewing New Zealand laws, to include the review in its 2021/22 work programme.

Faafoi said that " a review of the role of tikanga and te ao Māori concepts in law would be valuable on the basis that it will promote a better understanding of tikanga, help bring consistency to legislative reform across government, and support our focus on the Māori-Crown relationship".

"This particular topic crosses the responsibilities of different government agencies, making an independent entity like the Commission well placed to look at the broader picture," he said.

The Commission will also be reviewing the legislative settings for preventive detention.

Documents released to the NZ Herald under the Official Information Act show Faafoi initially wanted the Commission to review statutory references to te Tiriti o Waitangi and the English translation, the Treaty of Waitangi. He appears to have been talked out of the idea by Attorney-General David Parker, who recommended reviewing tikanga in the law.

Writing to Parker in April, Faafoi said it was time the Law Commission "undertakes a project with a kaupapa Māori focus", noting that the Commission had its first Māori president, Amokura Kawharu.

He said the proliferation of references to te Tiriti and the Treaty in legislation meant it was probably a good idea to clarify when and how both documents should be referenced in our laws.

Faafoi wrote that "[s]tatutory references to the Treaty of Waitangi, te Tiriti o Waitangi, or both, are common."

"This work would be valuable, especially in light of the notable increase in Treaty clauses in recent bills".

Faafoi wrote that there "is a risk that the current disparities in language and conflation of the Treaty with te Tiriti creates interpretive difficulties or unintended consequences".

"This project would articulate best practice with respect to whether, when and how the Treaty should be referenced in legislation".

Parker sought the advice of Crown Law, which appears to have been cold on Faafoi's proposal - although specific advice has been redacted. Instead, Crown Law mentioned that Te Arawhiti, the office for Māori-Crown relations was keen on "exploring the way forward for the inclusion of tikanga as part of the law in Aotearoa".

Crown Law said that the Parliamentary Counsel Office (PCO), the part of the Government tasked with drafting almost all of the Government's legislation, wanted the Commission to look into "the implications of incorporating tikanga principles into legislation for its interpretation, for decision-making under it, and for its implementation more generally".

PCO added that it was keen to know how "tikanga concepts [will] be described and understood from the perspective of both Māori and non-Māori (including whether it is envisaged that tikanga concepts would apply beyond Māori)".

PCO also wanted to know how "tikanga concepts" could be "best implemented, including what is the best input for sourcing expert input and testing it, and making decision-makers accountable for this", and whether tikanga had any implications for the relationship with the common law.

These recommendations were taken up by Parker, who included them in a letter to Faafoi later in May. It is not clear whether these specific points were taken on by Faafoi.

The review is unlikely to report back soon. Any recommendations from the report will first be reported to Parliament. It is then up to the Government whether it wants to act on them.

Faafoi and the Law Commission were approached for comment.