A specialist High Court panel could be set up to help weave tikanga into domestic law, as could an expanded jurisdiction for the Māori Land Court and the appointment of tikanga experts as lay members of the court.
These are just some of the options explored by the Law Commission in its recently-released study paper “He Poutama”, led by Justice Christian Whata (Ngāti Pikiao and Ngāti Tamateatūtahi).
Requested by the government in 2021 and building on a 2001 study paper on Māori custom and values in New Zealand law, the nearly 300-page report – together with three externally commissioned, independently authored appendices – reviews tikanga in domestic law and aims to guide lawmakers and others interested in the continuing interaction of tikanga and state law. The courts, lawyers and civil servants now have a principled framework to inform their interactions with tikanga as they develop the common law and write legislation, Justice Whata says.
“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.”
‘A slow weave’
Tikanga must be understood within te ao Māori, the paper repeatedly emphasises, for it is “lived and practised every day on the more than 700 marae spanning the length and breadth of Aotearoa New Zealand”.
State law – or legislation and regulations, the common law, state institutions, and norms and conventions – is rapidly interacting with tikanga, with as-yet unsettled boundaries. Tikanga and its institutions remain vulnerable to the state’s machinery; there are concerns too that state law may be adversely affected by the “unfettered” incorporation of tikanga. “All of this emphasises the need for care and manaakitanga by state institutions in the interpretation and application of tikanga,” the commission says. “We have therefore adopted a modest, incremental approach – a slow weave.”
To ensure coherence between the common law and tikanga, and to maintain the integrity of both, lawyers and judges must apply a “tikanga lens”, grounded in a core group of concepts such as connection (whakapapa and whanaungatanga); equilibrium (mauri, utu and ea); status (mana, tapu and noa); responsibility (kaitiakitanga, manaakitanga, aroha and atawhai); and processes and procedures, or kawa.
“It is important both to view tikanga as part of an integrated system of principles and also to understand that tikanga is pragmatic and can vary according to context. Properly understood, the fundamental concepts of tikanga also provide natural boundaries for its application by the common law, which assists in maintaining the coherence of the common law,” the commission says.
Future engagement could rest on enhancing current dispute resolution processes and developing new, tailor-made alternatives.
The ability of the Chief High Court Judge, under s 19 of the Senior Courts Act 2016, to establish panels to deal with a particular kind of proceeding could be called on. Much like the court’s commercial panel, which was set up in 2017 to deal with specialist commercial disputes, a “tikanga panel” of appropriately qualified High Court judges could be allocated cases involving tikanga-related disputes to manage and adjudicate.
Such a panel could help ease the court’s workload, be set up without having to establish a new court or expand an existing specialist court’s jurisdiction and litigants could identify their case as being suitable for the panel.
But the panel’s likely small size could put members at risk of conflicts of interest or allegations of “panel stacking”, the commission says. Panel members, while having general expertise in tikanga, would lack the specialist expertise others could bring and appeal rights would also sit with a non-specialist appellate court. The option of a tikanga panel is worthy of consideration, the commission says.
“The potential disadvantages may mean it is preferable to explore the alternative options discussed below, such as referrals to the Māori Land Court. However, at this time the need to enable the High Court to engage with tikanga appropriately and effectively on matters of intergenerational impact is a matter of considerable importance and urgency.”
Expanded Māori Land Court
Having existed for more than 150 years, the Māori Land Court has traditionally focused on resolving issues connected to land claims. But much has been written about the court of record’s jurisdiction and its potential to assume a broader role, the commission says.
Like other courts set up by statute, the Māori Land Court is limited to hearing matters conferred by legislation. The bulk of its jurisdiction derives from Te Ture Whenua Maori Act 1993 (TTWMA), which deals with retaining and developing Māori land in Māori hands. But the court also has jurisdiction under other statutes: where issues related to taonga tūturu (Māori cultural, historical or social objects) arise, for example, the Protected Objects Act 1975 confers jurisdiction on the Māori Land Court.
The court’s potential to consider tikanga issues should be considered, the commission says. In 2004, as part of a broader look at the structure of the courts, the commission recommended extending the Māori Land Court’s jurisdiction to include “all disputes involving communal Māori assets” and that the Māori Appellate Court should decide “any disputed issue of tikanga in all court litigation”, with parties being able to appeal only to the Supreme Court. The government did not adopt the recommendations though.
“Many of those recommendations could be revisited, including those relating to the court’s jurisdiction,” the commission says, noting that support for further expanding the jurisdiction beyond the area of communal assets is limited.
Enabling the High Court to appoint pūkenga to sit with a judge as commissioners on tikanga is another possible strategy, but it would require legislative amendment, the commission says.
No general provision exists to have pūkenga commissioners appointed to help the court, although they can be appointed to the Māori Appellate Court to hear High Court-stated cases on tikanga, under s 62 of TTWMA. Other kinds of lay commissions can be appointed – s 254 of the Resource Management Act 1991, for example, allows the appointment of commissioners and deputy commissioners of the Environment Court.
Section 9(2) of the Senior Courts Act 2016 anticipates that enactments might provide for the appointment of people other than High Court judges to sit with them or as members of the court in specific proceedings. The Commerce Act 1986 is one such enactment: under s 78, lay members can be appointed to hear and determine certain matters under the statute. But the additional lay members are not co-equal decision-makers, the commission notes.
These provisions could provide a model for appointing pūkenga to sit as commissioners in complex cases involving conflicting tikanga positions or where the powers, rights or obligations of non-Māori are engaged. However, experience suggests parties may not necessarily support their appointment. Under s 99 of the Marine and Coastal Area (Takutai Moana) Act 2011, the High Court can refer to the Māori Appellate Court of pūkenga for opinion or advice on tikanga.
“In some cases, parties have objected to these processes being instigated and the extent to which the expertise of pūkenga is relied upon,” the commission says. “While these issues will need to be considered, we do not think they rule out further consideration of the appointment of pūkenga as commissioners.”
Another strategy mooted is the development of default rules in the Arbitration Act 1996 to better enable tikanga-consistent arbitration. The alternative dispute resolution process, which encourages party autonomy and ownership of outcomes, is already available to parties who can agree on a tikanga appropriate way forward. However, where there is disagreement, the statute’s default rules apply – rules that work well in commercial disputes but weren’t drafted with tikanga disputes in mind, the commission says.
With tikanga increasingly interacting with state law, the courts and the legal profession must raise their level of understanding to ensure the engagement is done right each time.
Manaakitanga, or the obligation to care for and uphold the mana of tikanga, can be a useful guide, the commission says. Judges should be guided by manaakitanga when deciding whether to appoint pūkenga, when to defer to tikanga processes entirely or when to refer issues to a specialist court. Under s 61 of TTWMA, the High Court may state a case on “any question of tikanga Māori”, refer it to the Māori Appellate Court and be bound by its answer. The commission anticipates the High Court might use its case-stated power more often, given the increasing number of cases where tikanga issues arise.
This power – which is much broader than the Māori Land Court’s narrower statutory jurisdiction – can bring tikanga issues before judges with considerable experience in tikanga (Māori Appellate Court judges must have suitable knowledge and experience in tikanga to sit on the bench). Tikanga questions will be heard in a forum where pūkenga can be appointed as co-decision makers (under s 62 of TTWMA) and a decision of the Māori Appellate Court, which binds the High Court, is final.
Referring a stated case to the Māori Appellate Court is a “powerful” yet underused option, the commission says. “There would be value in the generalist courts being required to consider stating a case for the Māori Appellate Court in any case in which tikanga as law is at issue, particularly where the court is asked to determine what the applicable tikanga is. There is no statutory basis for this at present. However, the High Court could require the parties to consider the use of this procedure, relying on the High Court Rules and its inherent powers.
The commission has been “acutely conscious” of the immense significance tikanga has to Māori, says Law Commission President Amokura Kawharu (Ngāti Whātua and Ngāpuhi), who expects a wide range of views on the study – including encouragement and pushback.
“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,” Kawharu says.
The paper arrives at a time of active engagement: for at least the past decade, Parliament and the courts have recognised tikanga, mātauranga and other Māori ways of thinking in their own right. The District Court has also started embedding its Te Ao Mārama model, which aims to incorporate (among other things) tikanga into its operations. But outside of the Māori communities where tikanga is lived, mainstream and state institutional understanding is lacking, the commission says.
About half the paper is dedicated to explaining tikanga, its role in te ao Māori and key concepts that ground tikanga. Hypothetical case studies, where tikanga concepts are applied to realistic, contemporary situations, can help guide readers, although the commission accepts there are limits to how much help they can give – in many situations, it will be proper and necessary to seek guidance from pūkenga, for instance.
The remainder of the paper looks at the ways in which tikanga and state law interact and how this relationship has evolved over time. Strategies for future engagement are detailed and the need for a more tikanga-proficient public service is outlined.
The commission says there is “little utility” in readdressing whether or why state law and tikanga should engage. “Instead, we have focused primarily on identifying ways in which they may properly do so, that are respectful of both systems’ parameters.” ■