Tikanga Māori and state law – an exploration of He Poutama

Members of Te Paewhiti Ture (Bell Gully’s network dedicated to Māori legal issues and promoting kaupapa Māori initiatives within the firm) are contributing to the series. It will comprise three articles, each focused on a specific part of He Poutama. In this update we preview what will be canvassed.

Understanding core tikanga concepts

In our first article, addressing part one of He Poutama, we will consider the Commission’s views on how tikanga might be conceptualised as part of understanding core tikanga concepts. Such core concepts include whanaungatanga (the maintenance of kinship or a sense of familial connection and relationships)¹ as well as utu (an action undertaken for reciprocity) and ea (a resolved or settled state which may be facilitated by utu).² 

We will consider how these concepts are understood and their place within an integrated system of norms that comprise tikanga Māori. In particular, we will highlight a number of hypothetical case studies identified by the Commission which demonstrate how tikanga is relevant within a legal context, including the implications of whanaungatanga for breach of contract for supply,³ and how local authorities should approach consultation on matters that affect mana exercised by more than one hapū in relation to a particular area or resource.⁴ 

The interaction with state law

Our second article, considering part two of He Poutama, will address the interactions between tikanga and state law (legislation and the common law) against the background of developments in the law since 1840. As part of this, we will consider:

• the different ways the common law has engaged with tikanga, including the implications of there being no clear bright-line test for whether and how tikanga will be considered relevant by the courts;
• how tikanga is recognised in legislation and the possible approaches the Commission identifies for drafting legislation in a way that provides recognition of tikanga; and
• the different ways in which state law has engaged with tikanga in different practice areas, including the law of judicial review,⁵ applications for customary marine title and protected customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011,⁶ Māori land law,⁷ and environmental law.⁸

What lies ahead?

Our third article will consider the Commission’s recommendations for future engagement between tikanga and state law. In particular, we will reflect on the three areas the Commission has identified where tikanga engages with the common law:

• claims based on tikanga as custom, being those which seek recognition of a tikanga-based custom or practice that give rise to legally enforceable common law rights and interests;⁹ 
• claims based on tikanga values, being those which argue that one or more tikanga values should be considered by the courts in determining the outcome of a particular case (and therefore should also influence the development of the common law itself);¹⁰ and
• claims based on tikanga as law, being those which ask the court to make declarations or determinations about tikanga itself, as the determinative and operative law within Māori society.¹¹

We will also address the Commission’s recommendations for how the public service engages with tikanga, including the specific guidance that may assist public agencies on how to address tikanga as part of the policy and legislative process.

Finally, we will also consider the Commission’s views on how the courts may better engage with tikanga, including through the appointment of pūkenga as court experts, counsel assisting the court, or the calling of pūkenga by parties to provide expert evidence,¹² as well as the referral of questions of tikanga Māori to the Māori Appellate Court for a binding determination.¹³ 

Further information

We look forward to sharing this series. You can access the He Poutama article series free of charge on the Māori Law Review here. 

If you have any questions or would like to discuss this further, please get in touch with the contacts listed, or your usual Bell Gully adviser.

^{[1] At [3.36].[2] At [3.60]-[3.64].[3] See “Case study 3: whanaungatanga and breach of contract for supply” in Chapter 4: A Guide for Engaging with Tikanga.[4] See “Case study 4: mana moana and consultation regarding the regulation of a pipi bed” in Chapter 4: A Guide for Engaging with Tikanga.[5] At [7.75]-[7.91].[6] At [7.159]-[7.173].[7] At [7.128]-[7.158].[8] At [7.2]-[7.20].[9] At [8.43].[10] At [8.49].{11] At [8.56].[12] At [8.111].[13] At [8.118].}

Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.