Pluralism in Action: The Role and Future of Pūkenga in Aotearoa New Zealand

• Pages: 165–210
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Asta Hinton
• Subject Matter: Derecho Público y Administrativo

165

PLURALISM IN ACTION:

THE ROLE AND FUTURE OF PŪKENGA IN

AOTEA ROA NEW ZEAL AND



Abstract

Tikanga Māori is becoming increa singly integrated into Aotearoa New Zealand’s

common law. Pūkenga, experts in ti kanga Māori, are esse ntial in maintaining the

integrity of Māori law while this inte gration develop s. Yet, the role of pūkenga exposes

the paradox of operating within a mono-legal system not designed for Māori law. Within

the courtro om, pūkenga assis t judges in recognis ing tikanga as a liv ing, developing legal

framework. Beyond this sphere, they contribute to legal education, ensuring a deeper

comprehension of tikanga and advancing Māori rights under the rule of law. However, a

series of tens ions persist for pūkenga . e expert evidence fram ework treats tikanga as a

discipline rathe r than a legal system, limiting recogn ition of pūkenga as legal authoriti es.

Additionally, the principle of prob ative valu e is challenging to apply as the judiciary

deepens its understan ding of tikanga Māori, since what is relevant in tikanga terms could

be e xcluded or overlooked entirely where its signicance is not understo od. Moreove r,

the adversarial emphasis on impartiality conicts with whakapapa-based obligations

central to tikanga expertise . Despite these challenges, pūkenga should conti nue to develop

their role within the court syste m to ‘strengthen’ legal pluralism in Aotearoa New Zealand

and help accelerat e the momentum necessary for f uture constitutional re nement.

* A disser tation s ubmitted in par tial fu llment of the deg ree Bachelor of Laws (Hon ours) at th e

Universit y of Canterbu ry | Te Whare Wā nanga o Wait aha, July 2 024.

166 [Vol 32, 2025]

I. Introduction

For close to 200 yea rs, Aotearoa New Z ealand ha s been a legally pl ural nation .

As st ated by Joseph Willi ams J, t ikanga Māori and English common law coexist a s

legal systems in A otearoa, as her rst and se cond laws.1 However, wi th a histor y

of cul tural and legal assimil ation, the recognit ion of ti kanga Mā ori as part of our

legally p lural realit y has been a topic of sig nicant lega l debate.2

Despite the se challenges , a third law is em erging in Aot earoa, sh aped by

both tikang a Māori and English common law.3 This demonstrate s a pivotal point

concernin g the role of tik anga in the legal syst em.4 As th is evolving t hird law is

indicati ve of legal plura lism, th is prompts the broader qu estion: how should leg al

pluralism continue to develop in Aotearoa?

Legal plu ralism ca n take ma ny forms based on societ al circu mstances .5 The

specic plur al relationship t his dissert ation explores is the int ersection of pūkenga

and the exp ert evidence f ramework in Aot earoa . In anal ysing th is plura l relationsh ip,

this disser tation seeks t o r stly explore wh at the role of pū kenga demonstrates

for legal plur alism in Aot earoa. The an alysis wi ll then evalu ate what the fut ure of

pūkenga in our lit igation system may look like thr ough a pluralist lens, and , how the

role of pūkenga can bes t increase the u nderstandin g and usage of tikang a in our

wider legal s ystem.

Part II of t his disser tation descr ibes in detai l the concepts of lega l plurali sm,

realis m, and relation ality, and how t hey are present in Aot earoa. Thi s section

also outl ines the adoption of he aw a whiria – the i ntegrate d, bicultur al researc h

methodolog y de signed to provide incl usive research outcome s by fusing Māori

and Western re search process es. Part II I then builds on exi sting lega l plural ism

scholarsh ip t hrough analysi ng the i ntersection of pūkenga and expert evidence

laws. In doing so, the sec tion rst out lines the h istorical ba ckground on t he role of

pūkenga and how this correlates to their role in the courts. The section then describes

the expert evidence fra mework within which pūkenga operate, and ana lyses specic

examples of how pūkenga bring tikang a before the court. Following th is analysis, the

overarchi ng essence of this sect ion is explored, which arg ues that the intersec tion

of pūkenga a nd expert evidence law is i ndicative of a weak plu ral relationshi p.

1 Josep h Wil liams “Lex Aotearoa: An Heroic Attempt to Map th e Māori Dimen sion in Modern

New Zeala nd Law” (2013) 21 Wai L Rev 1 a t 2 and 5.

2 At 10.

3 At 11.

4 Jacinta Ru ru “First L aws: Tika nga Māori in /and the Law” (2018) 4 9 VUWLR 2 11 at 211.

5 Jenn ifer Corr in “Ex ploring the De ep: Looki ng for Deep L egal Pl uralism in t he Sout h Pacic ”

(2017) 48 VU WLR 305 at 309.

Pluralism in Ac tion: The Role and Future of Pū kenga in Aotearoa New Zeala nd

167167

In light of t his weak plur al relationsh ip between ti kanga and s tate law in t he

courts , Part I V highl ights the adva ntages and pi tfalls of t he adversaria l system

in both re cognising pūkenga as experts in law, a nd the wider acceptanc e of the

principles and practice s of tikanga Māor i. As tika nga incrementally forms part of the

common law of Aotearoa, the role of pūkenga as experts i n tikanga Māori is crucial

in developing t he law in a way that ma intain s the integr ity of tika nga.6 However, thi s

article argues that the operation of pūkenga within an adversarial, predominantly

mono-legal cou rt system h ighlig hts the real ity that ti kanga cont inues to operate

subserv ient to state dom inance.7 This article concludes by ar guing that pūkenga

current ly operate as a lega l paradox. Thi s is because pūken ga currently work

withi n a system not designed for Māori law, yet they are necessar y for the continued

development of Māori law w ithin the sys tem.

Part V argues that looki ng to the future, pūkeng a should continue as a developing

role wit hin liti gation in Aotearoa . In doing so, it is likely th at pūkenga will cont inue

to operate as a paradox wit hin an adver sarial f ramework. However, thi s will gi ve

pūkenga the opportu nity to c ontinue to develop tika nga underst anding inside the

legal fr amework, and to pr epare for possible cons titutiona l change lead ing to a

stronger leg al pluralism .

Overall , this dissertation argues that pūkenga should continue to have a role within

the litigat ion system, despite t he challenges t hey face when acting i n an adversaria l

court sys tem. When looki ng to the fut ure, the impor tance of ‘st rengtheni ng’ our

legal plur alism become s clear. To get there, however, thi s disserta tion concludes

active engagement b etween st ate law and ti kanga M āori under the current , if not

slightl y modied const itutional a rrangements, w ill help accelerat e the momentum

necessar y for future const itutional re nement.

II. Theory and Methodology

In the mult i-faceted a nd evolvi ng lega l land scape in Aotearo a (New Zealand),

legal the ory provides an i mportant f ramework for unders tandin g how laws are

applied, int erpreted, a nd enforced with in society.8 Thi s section delves int o key

theoretic al underpinn ings that infor m legal interpret ation in Aotearoa, speci cally

6 Natalie C oates “The Rec ognition of T ikanga in the Common L aw of New Zeala nd” (2015) 1 NZLR

1 at 58.

7 David W illiam s “The Waitang i Tribuna l and Legal Plur alism: A Rea ssessment” (1994) 10 AJ LS 195

at 196.

8 Erik Björlin g and Eva-Maria Svensson “The Role of Legal Theor y in Legal Education: A Reectio n

on Professio nal and Sch olarly Idea ls in Nordic L egal Educa tion” (2021) 4 Nor dic Journa l on Law

and Societ y 1 at 2.