Legal Pluralism in Aotearoa / New Zealand

• Author: Dr Caren Fox
• Position: Acting Chief Judge, M?ori Land Court. Presentation to the Australasian Law Academics Association Conference, University of Canterbury, Christchurch, 8 July 2023
• Pages: 35-53

35

LEGAL PLURALISM IN

AOTEAROA/NEW ZEALAND

*



Legal plu ralism exi sts in the New Zea land nation st ate. It was cemented i n place

when Brita in negotiated a nd signed Te Tir iti o Waita ngi | Treaty of Wa itangi w ith the

rangat ira, hapū and iw i of this land. The M āori text of the Tr eaty, which most Māori

signed, guaranteed that Māori would retain their “tino rangatiratanga” (chiefly

authority) which by implication includes the continuation of their own forms of

governance, l aws and citizensh ip. This guara ntee was a declarat ion of what existed

in the count ry when colonisation b egan, namely t hat Māori governed them selves by

their own laws or tikanga. This Māor i legal system conti nued, even though largely

made unenforceable as colonisation proceeded and as many colonial politicians

and some judges t ried to suppress it. However, it rema ined viable in Māor i enclaves

capable of being reinvigorate d or modified as circumstances cha nged; and modify

they did.

Traditional governance models (namely rūnanga) morphed into councils and

then trust boards until the enactment of the old Māori Trust Boards Act 1955.

Now the favoured models for Māori governance are post-settlement governance

entities. There are also numer ous decisions of the superior courts which hold that

tika nga Māori is the first l aw of New Zealand. Therefore, t he nation is now alert to

the importance of Māori law as a set of principles a nd values that may be releva nt

consideration s in decision maki ng, that may need t o be weighed in decision m aking

or that may be d irectly lega lly enforceable.

Sir Joe Wil liams has descri bed how tikanga Māor i has permeated New Zea land

law.1 He notes that ti kanga emerged as t he first law of Aotear oa from the time of the

Hawaik ians to the classical Māori period of t he 18th and early 19th centuries.2 The

second law (name ly English law), was i ntroduced into New Zea land after Ma y 1840.3

1 J Williams “Lex Aotearoa: Mapping the Māori dimension in modern New Zealand Law” in

Robert Jos eph and Richa rd Benton (eds) Waki ng the Taniwha: Māori g overnance i n the 21st centur y

(Thomson Reu ters, Wellin gton, 2021) at 5 43–544.

2 At 54 2.

3 At 5 42–548.

* Acting Chief Judge, Māori Land Court. Presentation to the Australasian Law Academics

Associat ion Conference, Un iversity of Ca nterbury, Ch ristchurc h, 8 July 2023.

36[Vol 30, 2023]

The third law, existing from the 1970s to the present, is a blending of these legal

systems a s tikanga Mā ori is being integ rated and mai nstreamed. 4

There are four poi nts that can be made based upon his ana lysis relevant to the

topic of legal plu ralism.



Law is defined by reference to rules or processes capable of enforcement and

situated within a political system, society or community.5 Under this approach,

Engli sh customary l aw was incorporate d into the common law. Cust omary law was

“law generated by so cial practice a nd acceptance”. 6 It was “m ade by the commun ity”

and “established by long standing practice and precedent”.7 The Case of Tanistry

(1608) from Ireland recogni sed that custom may be a source of law and that it was

important for such custom to be: (a) of antiquity, (b) of uninterrupted usage or

continuance, (c) certain, and (d) reasonable. Such customs were void against the

Crown.8 I n this cas e the custom of t anistr y was found to be u nreasona ble, uncerta in,

contrar y to the common law, was prejud icial to the prerog ative and therefore void.9

This is also one of the authorities for the proposition that custom ca n survive the

import ation of English l aw, so long as it is not repugnant t o the rules of the com mon

law.10

Logica lly, it follows that Māori law shou ld have been recognis ed by the common

law in the sa me manner as the cus tomary law of Irela nd, although asc ertainin g its

nature m ay require a dierent a nalysis to es tablish its nat ure and extent .

Sir Edwar d Taihakur ei Durie on this poi nt noted that:11

… a mono-legal re gime had not been cont emplated duri ng

the execution of the Treaty of Waitangi. On the contrary,

Māori were speci fically concerned t hat their own laws would

be respect ed. There was no lack of cl arity i n their position t hat

4 At 54 8–549, 582 .

5 R Benton, A Frame and P Meredith (eds) Te Mātāpunenga:A compendium of references to the

concepts an d institutions of Māo ri customary law ( Victoria Univ ersity Press, Wel lington, 2013) at

14.

6 Joe Wi lliams “He a ha te tika nga Māori” (u npublished dr aft, 1998) a t 1 <www.bit.l y/3rumn4d>.

7 At 1.

8 Case of Tanis try (1608) Davis 28 7 8–115 (KB) at 88–100; s ee also Campbell v Hall (1774) 1 Cowp 204

(KB) at [208]–[2 09].

9 Case of Tani stry, above n 8, at 92–10 0.

10Case of Tanistry a bove n 8, at 101–108; Wi lliams, a bove n 1, at 547.

11E Durie “W ill the set tlers sett le? Cultur al concil iation and law ” (1996) 8(4) Otago La w Review 449 ,

at 460–461 . See also Wait angi Tri bunal e Whang anui River Repor t (Wai 167, 1999) a t 264.