Tikanga and the courts - Law Commission proposes changes in dealing with Maori issues

The 300-page report looks at what tikanga is, how it has interacted with state law so far, and some processes for ways of handling it within the courts and government agencies in the future. Photo / Mark Mitchell

The Law Commission is proposing an expanded role for the Maori Land Court to become a specialist court dealing with broader matters involving Maori customs, values and practices, tikanga.

It is one of the suggestions in a report, He Poutama, commissioned by the Minister of Justice in 2021, on how tikanga relates to what it calls state law – laws passed by Parliament and the common law which is principally judge-made law.

Other suggestions include:

- The High Court appointing a lay tikanga expert (pukenga) to sit alongside the judges when determining issues involving tikanga.

- Requiring generalist courts to consider seeking an opinion from the Maori Appellate Court (the appeal court of the Maori Land Court) when an issue of tikanga at law arose.

- Creating specialist tikanga panels of judges within the High Court to hear tikanga-related disputes, as happened with commercial panels.

It also proposed setting up a group of tikanga experts who could work with government agencies when developing new policy and adding a requirement for Cabinet papers to have an assessment of any impact they might have on tikanga.

The commissioner’s report is likely to be seen by critics as a move towards a separate system for Maori and encouraging a contest between tikanga and state law, in which there is no presumption that state law should prevail.

But supporters are likely to see it as part of a greater awareness and responsiveness to Maori needs and values in the justice system and a recognition that common law and laws passed by Parliament are not “superior” to the first law of the country.

The 300-page report looks at what tikanga is, how it has interacted with state law so far, and some processes for ways of handling it within the courts and government agencies in the future.

In explaining what tikanga is, going back to the Maori creation story, it relied on Professors Wiremu Doherty, Sir Hirini Moko Mead and Sir Pou Temara of Te Whare Wānanga o Awanuiārangi.

The report cites the core concepts of tikanga including whakapapa (genealogical connection), whanaungatanga (kinship), mana (authority and responsibility), kaitiakitanga (guardianship), and tapu (sacredness).

It also touches on other concepts that could be relevant in cases, such as utu (reciprocation), ea (balance, and noa (ordinary or free from tapu).

“Tikanga” is being increasingly referred to in legislation and the courts will increasingly be called on to interpret or resolve associated disputes. For example, the Natural and Built Environment Act recently passed to replace the Resource Management Act mentions tikanga 31 times.

Under its decision-making principles, it states: “All persons exercising powers and performing functions and duties under this Act must recognise and provide for the responsibility and mana of each iwi and hapū to protect and sustain the health and well-being of te Taiao in accordance with the kawa, tikanga Māori (including kaitiakitanga), and mātauranga Māori in their rohe or takiwā.”

The issue of tikanga is intrinsically important to the 600 or so claims for customary title to the foreshore and seabed under the Marine and Coastal Area (Takutai Moana) Act 2011 because the law says the pre-condition of “exclusive use” of the relevant area must be based on “tikanga”.

Exclusive use of the foreshore and seabed must be determined by tikanga, under the law. Photo / Alan Gibson

In several different cases in the past 10 years, courts have affirmed tikanga as being part of the common law of New Zealand and as being law itself.

The main cases have been Takamore v Clarke which concerned whether a woman could bury her Maori partner close to where they had lived rather than in his iwi’s ancestral home; the Trans-Tasman Resources case which quashed a consent to mine iron ore off the Taranaki coast which said the rights and interests of iwi had to be determined through a tikanga lens, which had not happened; and the procedural decision to grant a posthumous hearing to Pākehā Peter Ellis and (despite being allowable under existing court rules), sought expert advice on tikanga, approved the hearing without using tikanga, then removed any pre-conditions before a court in future could consider tikanga issues.

The commission said general guidance could be extracted from the decisions to date including:

- Tikanga has been, and will continue to be, recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant.

- Tikanga is the first law of Aotearoa New Zealand and continues to shape and regulate the lives of Māori.

- When dealing with common law dispute resolution, if tikanga forms part of a person’s heritage, the common law may require consideration of tikanga. However, the potential relevance of tikanga to common law adjudication is not confined to Māori.

- Tikanga must not be viewed through a non-Māori lens, or shoehorned into an English law framework.

- Tikanga should be defined by reference to tikanga as a complete system in which the core concepts are intertwined and exist as an interconnected matrix.

- Tikanga is a principles-based system of law, capable of adaptation according to context.

- There are clear limits to common law engagement with tikanga. The courts must not exceed their function when engaging with tikanga, and care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.

- The common law cannot give effect to tikanga that is contrary to statute or to fundamental principles and policies of the law.

- Where tikanga may clash with other values in society, existing principles or common law, this conflict will need to be worked through.

Amokura Kawharu, president of the Law Commission.

The report acknowledged that some people, including the late Moana Jackson, rejected any engagement between tikanga and the common law and that they saw a risk of distorting tikanga through a “inherently assimilative” process.

Law Commission president Amokura Kawharu said the commission expected a wide range of views on the study, “including favourable and less favourable ones, as the topic continually evolves”.

“While tikanga is increasingly being woven into statute and the common law, there’s still misunderstanding about the concept, which has implications for the integrity of both tikanga and the law.

“While much work is still to be done, we are hopeful the paper will provide a sound basis for future interaction between tikanga and state law.”

Justice Christian Whata, who led the commission’s study, said it clearly showed the extent to which tikanga is influencing state law.

“Throughout the project, we have been focused on the deep significance of tikanga to Māori and the importance for both tikanga and state law of improving general understanding of tikanga while proceeding with care.

“We asked pūkenga [experts] to guide us and have aimed to give an account of tikanga for those engaging with it in a legal context that is both authentic and connected with the law.”

The report is expected to be considered by the next Government.