A Nation Cast Adrift? A Legal and Historical Analysis of Tikanga Maori for the Purposes of General Common Law Application

• Author: Nuku Tau
• Position: I would like to acknowledge the contribution of University staff such as Adrienne Paul, Prof. Robin Palmer, Prof. Liz Toomey Dr. Sarah Down, Dr. Toni Collins & Dr. Martin Fisher. Thank you to my parents for their constant support and my friends Lewis, Nic, Angus, Harriett, Freddie & Pippa for their encouragement
• Pages: 115-149

A Nation Cast Ad rift? A Legal and Histo rical Analysis of Tikan ga Māori for the

Purposes of General Common Law Application

115

A NATION CAST ADRIFT? A LEGAL AND

HISTORICAL ANALYSIS OF TIKANGA

MĀORI FOR THE PURPOSES OF GENERAL

COMMON LAW APPLICATION





Tikanga as a bas is for Aotearoa/New Zeala nd’s legal framewor k and governan ce is

not an entirely new c oncept. Tikan ga received recogniti on in colonial New Zealan d’s early

days and its subse quent disregard w as an unfortuna te consequen ce of an increasin gly

aggressive s ettler coloni alism. ou gh great caution a nd thought will be re quired in its

application a nd despite objection fr om Māori and Pākeha alike , tikanga may yet provide

surer foundations for a bicultural Aotearoa/ew ealand.

Ko Takit imu tōku waka,

Ko Maungat ere tōku maunga ,

Ko Raka huri tōku awa,

Ko Ngāi Tahu t e iwi,

No Tuah iwi au,

Ko Te Rakit aunuku Tau aha u.

Takit imu is my waka,

My mountai n is Mt. Grey,

The Ashley is m y river,

My iwi is Ngā i Tahu,

I am from Tu ahiwi,

I am Te Rak itaunuku Tau

I whakapa pa to Ngāi Tūāhu riri, a hapū of Ngāi Ta hu, and this ar ticle is written

from that per spective. Though other i wi and their tik anga are noted a nd discussed

* I would like t o acknowledge the cont ribution of Universit y sta such as Adr ienne Paul, Prof.

Robin Pal mer, Prof. Liz Toomey Dr. Sa rah Down, Dr. Toni C ollins & Dr. Mar tin Fisher. Than k

you to my paren ts for their con stant s upport and m y friends Le wis, Nic, A ngus, Ha rriett ,

Freddie & Pippa for their encour agement.

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116 [Vol 29, 2022]

here, my bett er sources and i nsight s are formed an d drawn fr om my Ngāi Tahu

whakapapa.

Tika nga Māori a nd the more infor mal ‘kawa’ have s urrounde d me all my li fe,

growin g up in the vi llage of my ha pū, Tuah iwi. I know my whānau a nd all t ūpuna

before them have at tempted to live by it, despi te the ever-changi ng nature of their

worlds. I grew up w ith stories from my pou a (grandfat her) of how our whānau used

to camp a long the Rakahu ri (Ashley) river a nd catch whiteba it along its bank s, how

we used to ret urn home wit h stag gering num bers of eels from Te Wai hora (Lake

Ellesmere) and h ow nearly al l whānau wer e withi n walk ing dist ance from one’s

home. These times a re gone, but not forever. I presented my reas oning for the rura l

Māori disp ersal in my l ast Honours R eport cited b elow. Like that Rep ort, th is one

has a ta ngibly his torica l flavour. Here, I want ed to exam ine the deg radation of

tika nga, some of which is wi thin livi ng memory. Following th is discussion, I w ish to

present an ar gument and path for the modern int egration of tika nga Māori within

the contempor ary New Zeala nd legal system .

We live in sti rring ti mes for Māori and the le gal system . With thi s excitement and

hope comes insec urity and even fea r. In current discuss ions around tika nga Māori,

there is al ready plenty of b oth. This a rticle a ims to gi ve a measured a rgument for

the integ ration and wider ac ceptance of ti kanga in t he law of Aotearoa New Ze aland.



They are not mere wa nderers over an extende d surface, in

search of a prec arious subsis tence; nor tribes of hu nters, or of

herdsmen; but a people a mong whom the arts of gover nment

have made some progr ess; who have establi shed by their own

customs a d ivision and appropriat ion of the soil; who are not

without some me asure of ag ricult ural sk ill, a nd a certa in

subordin ation of ranks; w ith usages hav ing the char acter and

authorit y of law.

– Lord Russel l to Willia m Hobson, 9 December 18401

Withi n livin g memory, tika nga has la rgely been con fined to priv ate deali ngs

between whā nau and procedu re on the marae .2 However, recent developments in the

1 A Mackay A Co mpendium of O cial Docum ents Relat ive to Native Aair s in the South Isl and:

Volum e II (Luckie & Co llins, Nels on, 1872) at 42.

2 ET Dur ie, Chief Judge of the M āori Land Cour t “FW Guest Memoria l Lecture: Wi ll the Settl ers

Settle? Cu ltural C onciliation a nd the Law” (19 96) 8(4) OLR 449 at 453 .

A Nation Cast Ad rift? A Legal and Histo rical Analysis of Tikan ga Māori for the

Purposes of General Common Law Application

117

law such as the Takamore case,3 and the S upreme Court’s pending dec ision in Ellis,4

have forced the cou rts to confront t ikanga at stat e level. What this preci sely means

for New Zeala nd’s current “legal monoc ulture” rema ins to be seen.5 The recog nition

of New Zeala nd’s first cust omary l aw presents a wide r ange of opport unit ies and

challen ges that the aut hor endeavours t o explore. Ini tial ly, the reader wil l be

furn ished with a g eneral descr iption of what ti kanga Māori is. Then, a h istory and

examples of it s application w ill be analysed . Both the pre, during a nd post contact

periods wi ll be discu ssed; critica l in acquir ing an unders tandin g of tikang a and how

it has adapt ed over time. I w ill then set tle on developin g case law, includi ng Ellis.

Though un released, Ellis al ready generates large volu mes of speculation on what it

means for New Zea land’s legal fut ure.6

Tradit ionally, common law cour ts have allowed i ndigenous and cust omary lega l

systems t o continue, so long as they met a va riety of pre-requisit es.7 The Ellis case

presents an opp ortun ity for New Zea land’s court s to integ rate ti kanga M āori into

our law in th is manner. I wi ll critica lly examine t his integ ration. The concept ha s its

critics, w ith some Māori academics v iewing court at tempts to recogn ise tikanga a s

“patroni zing intolerance”.8 Ot hers doubt the ability of t he justice system t o engage

with an d understa nd tika nga Māori t o the appropri ate level.9 Comment ators such

as Don Brash a nd the Hobson’s Pledge group h ave expressed conc erns wit h the

very basis of t ikanga as an au thentic legal syst em. I will explore th ese views before

proposing a rguments to discou rage the reader from t heir adoption.

In the fina l paragrap hs of this art icle, I aim to show how t he common law courts

can work to rec ognise tikan ga Māori, a longside the legislatu re, to fully rea lise the

bi-cultu ral aspi rations of New Ze aland’s found ing par ties. My object ive is to show

that Māori h ave always li ved accordin g to tika nga and shou ld be enabled to do s o

furt her, through a s ympathet ic and wil ling leg al syst em. I wil l argue that fea rs of

an overly indu lgent or ignora nt application of t ikang a from the bench a re largely

unjust ified. With inc reasing eort s towards educat ion and engagement , the nation’s

courts a re caref ully a nd consciously eng aging w ith ti kanga , with no sig n of this

3 Takam ore v Clarke [2012] N ZSC 116.

4 Elli s v R [2020] NZSC 89 . This Paper wa s writt en before the Sup reme Court’s de cision in El lis was

delivered.

5 Paul McHug h e Māori Magna Car ta (Oxford Univer sity Press, A uckland, 19 91) at 86.

6 Se e Marti n Van Beynen “ The Peter El lis cas e and Māori c ustoma ry law” (9 Ju ly 2020) Stu  <www.

stu.c o.nz>; and Taha Br own “A further f usion of tikan ga Māori and com mon law? High Court

decision uphold s plaint i’s ma na” (6 April 20 21) Simpson Gr ierson <ww w.simpson grierson .

com>.

7 See Case of Tanistr y (1608) Dav 28: 80 ER 516 a s cited in McHug h, above n 5, at 87.

8 Philip Jo seph Joseph on Con stitution al and Admini strative La w (5th Ed, Th omson Reute rs,

Welling ton, 2021) at 11 1.

9 Meri ana Johnsen “C oncern at High C ourt use of ti kanga to ove rrule Wait angi Tri bunal” RN Z (31

March 202 1) <www.rnz .co.nz>.