Building the Foundations of Tikanga Jurisprudence

• Date: 01 January 2022

Building the Foundations of Tikanga Jurisprudence

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BUILDING THE FOUNDATIONS OF

TIKANGA JURISPRUDENCE

*†

Should … [Māori] at tempt to car ve out a small space w ithin

the whare ( house) of the stat e legal sys tem if the whenua

(ground) a nd foundations upon whic h it is built are defect ive?

– Natalie C oates1



Recent years ha ve seen a string of cases in which t ikanga Māori has been con sidered

or recognised a s part of the common law of New Zeala nd. e courts have a sserted – and

the Crown has ac cepted – that it is uncon troversial that t ikanga is part of the common

law. Yet, a close exam ination of the histor ical cases which hav e been held out as precede nt

for judicial rec ognition of Māori custom reve als a complex picture. is ar ticle explores

how at present ti kanga jurispr udence is progress ing upon the basis of o ld English law

and historical New Zealand cases which do not with stand scrutiny an d are inadequate

foundations for t he recognition of tikanga in t he present.

is does not mean t hat the courts sho uld not seek to legally reco gnise

tikanga. O n the contrary, cur rent legal challen ges before the courts d emand the

development o f a coherent tikanga j urisprudenc e informed by the circ umstances

of 21st century New Zea land. It is argued th at alternative l egal and conceptua l

pillars need to be c onstructed on wh ich we can build sou nd foundations for the

recognition of t ikanga, rather th an continuing to rely on o utdated histori cal case law.

1 Natalie C oates “The R ecognit ion of Tika nga in the Com mon Law of New Zea land” [2015] NZ L R ev

1 at 30.

* Dr Sara h Down is a Senio r Legal Res earcher at Te Kur a Taka Pin i, the body i nstitu ted to oversee

the Ngāi Ta hu freshwat er claim. She is an Honorar y Lecturer a t the Centre for Ab origina l

Economic Pol icy Researc h at Austra lian Nation al Universi ty and Adjunct Fellow at the Ngā i

Tahu Resea rch Centre.

† Dr David V Wi llia ms FRSN Z is a Professor E meritu s and Honora ry Resea rch Fellow i n the Facult y

of Law at The Unive rsity of Auckla nd.He has worked ex tensively in Tre aty of Waitang i claims

and isthe aut hor of numerous bo oks and ar ticles on the Tr eaty of Wait angi and M āori right s. He

contract s to Te Kura Taka P ini, the body i nstituted t o oversee the Ngāi T ahu freshwater cl aim

(ORCID ID: 0000-0003-3766-3695; email: dv.williams@auckland.ac.nz).

28 [Vol 29, 2022]

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In the fina l stages of prepublicat ion for this article, t he Supreme Court handed

down the much-awa ited Ellis decision,2 i n which a majorit y of the Cour t made

wide-rang ing statements on ti kanga.3 It was not pos sible to rewri te this a rticle in

light of the de cision, and an alysis of the i mplications a nd signific ance of the cas e

will be pr ovided elsewhere.4 Notw ithsta nding, we wish to ma ke some preliminar y

comments abou t how this aects t he arguments present ed in this ar ticle.

First ly, we welcome the Supreme Court ’s strong stat ements that the com mon

law must reflect t he circumsta nces of Aotearoa New Zea land in the present.5 As we

argue below, it is consi stent with the ru le of law that the com mon law is reflective

of society’s va lues.

The approach of the bench t o the hist orical cas e law is also of imp ortance t o

the argume nts presented here. For t he first time i n modern juri sprudence, it was

acknowledged t hat in Loasby, Arani a nd Baldick it was Pākeh ā and not Māori who

were the beneficia ries of the applic ation of tika nga – a point made t o justif y the

application of t ikanga i n a crimin al appeal c ase of a Pākehā ma n.6 There were,

however, inconsist encies between the judgment s as to the extent to wh ich the New

Zeala nd (and Engli sh) common law have hi storical ly recogni sed Indigenous cu stoms

as l aw.7 This is i mportant as t here must be acknowled gement of where we have come

from to guide wher e we go in the future .

2 The Ellis decision is i n fact two separat e judgments: one which c overs the substa ntive case of

whether to a llow the appe al, and whi ch found that th ere had been a seriou s miscar riage of

justice, and the second, w hich provides rea sons for allow ing the appea l to continue des pite the

death of Mr E llis (a resu lt judgment a llowing t he appeal h aving been m ade on 1 September 2 020).

It is the lat ter judgment on the p osthumous cont inuation of the ap peal that dea ls with matt ers

of tika nga. See resp ectively: Ell is v R [2022] NZSC 115; [2 022] NZSC 114 .

3 In a dissentin g judgment, O’ Regan an d Arnold JJ d eclined to c omment on tik anga as pa rt of New

Zeala nd save to note th e “essential pr oposition” th at “tika nga Māori h as been, and w ill conti nue

to be, recog nised in t he development of the com mon law of New Zea land” (at [279]). The ir

Honours made c lear that th ey did not believe t his was the app ropriate ca se to clari fy the law on

tika nga (at [281]–[290]). Wh ile the judgemen t of Glazebrook J prov ided the stron gest statement s

on tika nga, as pointed out by t he minority, the appr oach taken was not deter minative of the

result . At [146]–[147] per G lazebrook J and [2 89] per O’Rega n and Arnold J J.

4 See the fort hcoming ana lysis by Sarah Do wn in the Māori Law R eview. Note that the de cision

is alre ady having a n influence on the lower c ourts. See Hopkins v Jackson[2022] N ZHC 2649; Re

Edwards (dec’d) (on behalf o f Te Whakatōhea) (No 7) [2022] NZHC 26 44.

5 S ee in part icular [110] p er Glazebrook J, [1 65]–[166] per Wi nkelman n CJ, [257]–[259] pe r Willia ms J.

6 At [87] and [ 93] per Glazebro ok J, [175] per Win kelmann CJ a nd [246] per Wil liams J.

7 Compa re, for example, the s tatement by Glaz ebrook J that the cou rts have recogn ised tikan ga

since 1840 w hich was con firmed in Trans-Tasman Resources (at [108]) with the ackn owledgement

by Winkel mann CJ t hat “[f]or over one hu ndred year s, there was li ttle resor t to tika nga, its

rules, it s concepts or its values, w hen the court s applied or developed the law. Law yers and

judges ins tead looked to En gland for the ca se law, or to other common wealth jur isdictions.” At

[179]. See al so the citation of t he Case of Tanistry and Campbell v Hall by Wi lliams J at [259]. S ee

also the t reatment of Sym onds by Will iams J (at [246] ) compared w ith that of G lazebrook J (at [9 3]).