Legal Pluralism in Aotearoa / New Zealand

• Date: 01 January 2023

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, gua ranteed t hat Māori would ret ain thei r “tino ran gatirata nga” (chiefly

authorit y) which by implicat ion includes the cont inuation of their ow n 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 l aws or tikan ga. This Māor i legal system conti nued, even though largely

made unenforcea ble as colonisation pr oceeded and as ma ny colonial pol iticians

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

capable of bein g reinvigorate d or modified as circum stances cha nged; and modify

they did.

Tradit ional governa nce models (namely r ūnanga) mor phed into counci ls and

then tru st boards unt il the enact ment of the old Māori Tr ust Boards Ac t 1955.

Now the favoured mo dels for Māori governa nce are post-set tlement governa nce

entities. Ther e are also numer ous decisions of the superior cou rts which hold t hat

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

the impor tance of Māori l aw 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 classic al Māori period of t he 18th and early 19t h centuries.2 The

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

1 J Willi ams “Lex Aote aroa: Mappi ng the Māori d imension in mode rn New Zeala nd 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 C hief Judge, Māor i Land Cour t. Presenta tion to the Aus tralasi an Law Academ ics

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

36 [Vol 30, 2023]

The third l aw, existing f rom the 1970s to t he present, is a blendi ng of these lega l

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

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

topic of legal plu ralism.

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

Law is defined by re ference to rules or proc esses capable of enforce ment and

situate d within a pol itical sy stem, societ y or communit y.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 “esta blished by long sta nding prac tice and precedent”.7 The Case of Tanist ry

(1608) from Irel and recogni sed that custom may be a sou rce of law and that it w as

import ant for such custom t o be: (a) of antiquit y, (b) of uninter rupted usage or

continua nce, (c) certain , and (d) reasonable . Such customs were void a gainst t he

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 al so one of the authorit ies for the proposition t hat 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 t he Treaty of Wait angi. On t he contrar y,

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 F rame and P Mered ith (eds) Te Mātāpunenga: A comp endium of referenc es 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.

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

11 E 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.