February 2020 Māori Law Review

Sir Edward Taihakurei Durie student essay competition 2019 – Ngāi Tai ki Tāmaki Tribal Trust [2018] NZSC 122 and beyond the balancing exercise

Sir Edward Taihakurei Durie student essay competition 2019

Ngāi Tai ki Tāmaki Tribal Trust [2018] NZSC 122 and beyond the balancing exercise

Rhianna Morar

Foreword by Carwyn Jones, Māori Law Review co-editor

The Māori Law Review is proud to publish in this issue the winning essay from the 2019 Sir Edward Taihakurei Durie Student Essay Competition.

The essay competition is held annually and sponsored by the Māori Law Review. The competition seeks entries from undergraduate law students which address a significant legal development affecting Māori from the preceding year. Our judging panel noted on the very high quality of entries received this year and the exciting range of topics addressed, reflecting the increasing significance of developments affecting Māori within different areas of law.

The 2019 competition was won by Rhianna Morar. Rhianna’s essay is entitled ‘Ngāi Tai ki Tāmaki Tribal Trust [2018] NZSC 122 and beyond the balancing exercise’ and explores the Courts’ interpretive approach to tikanga Māori. In her essay, Rhianna suggests that the reasoning in Ngāi Tai ki Tāmaki Tribal Trust opens up opportunities for the development of a genuinely pluralist approach to tikanga in New Zealand law.

Rhianna (Ngāti Porou, Te Arawa) is in her fifth year at Te Herenga Waka – Victoria University of Wellington and is completing an LLB (Hons) and a BA in Political Science and International Relations. She is currently a member of the University Council and also a student representative on the Executive Committee of Te Hunga Roia Māori o Aotearoa (the Māori Law Society).

Introduction

The Supreme Court decision in Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation supports a new interpretative approach which seeks to redefine common law methods of evaluating tikanga.[1] This essay will assess the court's interpretation of “reasonableness” and the extent to which this influences the practical application of the principles of the Treaty. Ngāi Tai moves beyond the mere balancing of interests and towards displacing Crown assumptions of superiority and the development of tikanga as more than a relevant consideration. However, it should be acknowledged that the court's power is limited to the extent that the principles must be interpreted and applied depending on the relevant statute. It is a landmark case only insofar as it is based on statutory interpretation of a strong Treaty provision. However, the displacement of a balancing exercise method marks a significant development of tikanga as a system of law independent from common law methods of evaluation.

The intersection between tikanga Māori and the state legal system

The discussion of tikanga and the principles of the Treaty in this essay requires some introduction. There is a subtle, but important, difference between the development of Treaty principles and tikanga within our state legal system. Dr Carwyn Jones has argued that the Treaty principles cannot be constitutionally transformative as they are premised on existing constitutional arrangements which constrain the concepts of kāwanatanga and tino rangatiratanga to fit within a purely western framework.[2] The existing arrangements are that Māori customary law is something to be ‘justly included’ or recognised within the state legal system. This has the effect of legitimising western sources of law.[3] In that framework, concepts of kāwanatanga and tino rangatiratanga are only given meaning to the extent that this does not question the legitimacy of the state legal system itself.[4] To the contrary, David Williams has argued that it is the Māori legal system which holds legitimacy in Aotearoa, and the common law does not.[5] What Dr Jones observes is that the Treaty principles only provide a useful framework in so far as to carve out a constitutional space within the state legal system.[6] To that end, he argues that the Treaty principles are premised on a compromise between the legitimacy of the state legal system, and the mere recognition of Māori customary law to the extent that it does not question this legitimacy.[7] For reasons that will be explored, the appropriate constitutional relationship between kāwanatanga and tino rangatiratanga cannot be determined by the Treaty principles. Rather, he argues, these concepts must be determined in the context of a Māori legal system. This necessarily requires a recognition, by the courts, of the validity of tikanga as a system of law, which is not evidenced in our current constitutional arrangements.[8] While Dr Jones does not elaborate on the mechanisms required to give practical effect to this kāwanatanga-tino rangatiratanga relationship, this essay argues that a new interpretative approach, which recognises tikanga as a system of law, will provide the necessary yardstick to give authentic meaning to the concepts of kāwanatanga and tino rangatiratanga.[9] To that end, the greater recognition of tikanga as it’s own source of law which informs the development of New Zealand common law will lead to a different interpretation of the Treaty and it’s principles, and how they are understood in a Māori legal system.

Ngāi Tai ki Tāmaki

Ngāi Tai ki Tāmaki Trust ("Ngāi Tai Trust") sought judicial review of two decisions to grant concessions under s 17Q of the Conservation Act 1987.[10] Ngāi Tai Trust represents the iwi of Ngāi Tai ki Tāmaki. Ngāi Tai ki Tāmaki has deep and long-standing connections with the rohe extending across Tīkapa Moana (Hauraki Gulf), including the ancestral motu of Rangitoto, Motutapu and Motu-a-Ihega (Motuihe).[11] Ngāi Tai Trust alleged that the Department of Conservation ("DOC") was obliged to refuse to grant concessions to other parties as part of its duty of active protection of Ngāi Tai interests.[12] It argued that granting other concessions would limit or remove opportunities for Māori.[13]

The Supreme Court decided whether the decision-maker had properly met the obligation in s 4 of the Act in granting the concessions. Section 4 needs:

“This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi" [emphasis added]

The Court upheld Fogarty J’s finding from the High Court that the decision-maker’s dismissal of the possibility of preference being accorded to Ngāi Tai as mana whenua, and of the economic benefit that could accrue to Ngāi Tai meant that s 4 was not properly considered.[14] However, the Supreme Court did not agree that the errors were “insufficient” to say that the Minister had breached s 4.[15] The Court concluded that had a degree of preference been given to Ngāi Tai, and their economic interests taken into account, the decision-maker may well have reached a different conclusion on the application of s 4.[16]  It noted that Ngāi Tai did not need to establish that it was entitled to a decision that denied concessions to parties other than iwi or hapū with mana whenua to establish an error of law.[17] The Court ordered that the decisions granting concessions should be reconsidered in the “correct legal framework”.[18]

Section 4 required the Court to give effect to the Treaty principles in relation to the granting of concessions to other parties. Ngāi Tai relied on the principles of partnership, active protection, right to development and redress.[19]

Defining reasonableness

Partnership

The overarching principle of partnership imposes “the duty to act reasonably, honourably, and in good faith”.[20]  This does not mean “equal partners”, but rather “a continuing relationship exercised reasonably and in good faith”.[21] The Treaty is said to be “founded on reasonableness, mutual cooperation and trust”.[22] The courts must apply the test of reasonableness in a “realistic” way.[23]  The Waitangi Tribunal has recognised “the need for compromise and a balancing of interests” as integral to its understanding of the status and accountability of the Treaty partners.[24]

Active protection

The principle of active protection extends to the “fullest extent practicable”.[25] The Court has recognised that protecting taonga does not require the Crown “to go beyond taking such action as is reasonable in the prevailing circumstances”. The interpretation of reasonableness is dependent on the particular context.[26]  Similarly, the Tribunal has affirmed that the Crown’s duty of active protection is recognised to “the fullest extent reasonably practicable”[27] and that this may depend upon “the nature and value of the resources”.[28]

Redress

The principle of redress requires the Crown to provide some form of redress, “unless there are grounds justifying a reasonable treaty partner withholding it”. The Court in Lands noted that this would be in very limited circumstances, if at all.[29] Conversely, the Tribunal noted as far back as 1987 that “compensation recommended by the Tribunal need not be scaled to what is considered ‘practical’”.[30] However, in a later report (1988), the Tribunal found that in some cases, “the Treaty requires a balancing of Māori concerns with those of the wider community of which Māori form part [...] [a] balance must be maintained however, not an over-redress [emphasis added]”.[31] In that particular claim, the Tribunal found that an “absolute priority for Māori” could not be upheld.[32]

In applying a jurisprudence of Treaty principles, the courts have traditionally interpreted “reasonableness” against an underlying assumption of Crown superiority. Such an interpretation has imposed limitations on the extent to which the Treaty of Waitangi and tikanga Māori is applied in the courts, redefining the Treaty relationship as one of subordination. This has further perpetuated a sense of the inferiority of Māori customary law and its subordination to western sources of law that inform the development of the state legal system. Without recognising tikanga as a system of law which informs the development of the New Zealand legal system, the discussion and examination of “reasonableness” is limited to the hierarchical framework of state law dominance derived from only western sources of law.[33]

Recognition by the common law

The common law has always applied insofar as it is applicable to the local circumstances of New Zealand. Consequently, the common law is evolutionary and has developed to reflect customary law. The Supreme Court in Takamore v Clarke rejected the distinction between what Chambers J called “the pure common law” and tikanga.[34]  The judicial inquiry is not whether tikanga should be recognised by the common law, but how it should be recognised. There has been some criticism about whether recognition of tikanga as a common law concept has perpetuated its amalgamation.

The common law requires reference to tikanga, along with other important cultural, spiritual and religious values, and all other circumstances of the case as matters that must form part of the evaluation.[35]  Jacinta Ruru and Williams J argue that the courts are adept at reaching decisions which uphold the Crown’s interests at the expense of Māori interests.[36] The “balancing exercise” and limits based on “reasonableness” often favour economic interests. Williams J proposes that recognition of the Treaty and tikanga requires the mutual recognition of interests upon “two systems working together”.[37]

Supreme Court decision

I argue that the Supreme Court in Ngāi Tai sought to re-define the practical application of Treaty principles in accordance with tikanga as a legal system independent from common law methods of evaluation. Ngāi Tai Trust argued that s 4 requires the consideration of manaakitanga and kaitiakitanga exercised in its traditional rohe. These tikanga relationships with the land are intrinsic to their status as mana whenua.[38]

Re-defining reasonableness

The Crown argued that priority given to Ngāi Tai's claimed interests represented a veto over the granting of concessions which “pitches the claim too high” as held by the Court of Appeal in Ngāi Tahu Māori Trust Board v Director General of Conservation (Whales).[39] The Supreme Court rejected this on the basis that Ngāi Tai exercised rangatiratanga over the land as mana whenua.[40] This was consistent with the Whales case which held that Ngāi Tahu were entitled to a “reasonable degree of preference”.[41] This case diverted from the orthodox position and held that a “reasonable” Treaty partner is obliged to consider that Ngāi Tai’s rangatiratanga means their interest is stronger than other interests held by those without mana whenua. This rejects the notion that Ngāi Tai is claiming a veto power and merely reinforces the obligation to consider that it would be inconsistent with tikanga if other applicants were granted concessions over Ngāi Tai’s sacred lands.  Rather than including Māori within a western hierarchy of considerations, it puts the onus on the decision-maker to consider Ngāi Tai as mana whenua in their own right and take seriously any prejudicial effects a decision to grant concessions may have on their customary interests.

It is important to note that, the Court does not require that the decision itself must uphold tikanga. Rather, the decision-maker must put herself into a “proper position” to consider s 4. Although what constitutes a “proper position” is unclear, what is clear is that the decision must not have prejudicial effects on customary interests.

The Court held that s 4 was a “powerful”[42] and “fundamental”[43] provision. It required “more than procedural steps” and must be considered in light of other extrinsic aids. The Court considered the Hauraki Gulf Marine Park Act 2000[44] and the Auckland Conservation Management Strategy[45] which affirmed that Ngāi Tai exercised co-governance over the affected area. It also considered the Ngāi Tai Deed of Settlement which of historical claims provided for a Conservation Relationship Agreement to be entered into between Ngāi Tai ki Tāmaki and DOC.[46] The principle of active protection requires the decision-maker to consider the possibility that concessions should not be granted to those without mana whenua. A “reasonable” Treaty partner would not restrict active protection to a “hollow duty to consult”.[47]

Beyond the balancing exercise

The Court held that other statutory objectives must be achieved to the extent they are consistent with s 4. This is fundamental as s 4 was not merely “part of an exercise balancing it against the other relevant considerations”.[48] Although the appropriate method having moved beyond “mere balancing”, is unclear, this departs from the approach that Treaty principles should be considered against western frameworks. Moving beyond a balancing exercise strengthens the status of the Treaty within the common law and perhaps signals the advent of legal pluralism. I contend this on the basis that this decision requires the Crown to have mutual recognition for Māori as tangata whenua with distinct constitutional traditions, thus giving effect to a Treaty relationship. This is demonstrated by the Court's rejection that the error of law was “insufficient” to justify relief and ordering that the decision be remade in the “proper legal framework”. The proper legal framework being the mutual recognition of tikanga as a legal system that is recognised by (and therefore within the common law) that should not be “balanced” against other interests, and that preference be given to those who exercise rangatiratanga.  The dismissal of such interests and “effective sidelining of s 4” in the decisions challenge was a failure to comply with a “fundamentally important requirement” and constituted an error of law.[49] The Court rejected the notion that a “balanced” decision had been reached and went as far as to say:[50]

[The decision-maker] could have made further inquiries about Ngāi Tai’s mana whenua status and how that fitted in with the interests of the Tāmaki Collective and the other iwi/hapū comprising the Tāmaki Collective in relation to the Motu [or] given further consideration to the possibility that either or both of the applications should not be granted, leaving only the Ngāi Tai Trust’s concession as an operative concession on the Motu, was what s 4 required.

The Court noted that Ngāi Tai did not need to establish that it was entitled to a decision that denied concessions to other parties to succeed in establishing an error of law.[51] It acknowledged that the context in which decisions should be reconsidered is different given the enactment of the Ngāi Tai Settlement Act and the possibility that the Motu Plan will be finalised.[52] The Court's emphasis on extrinsic aids demonstrates the significance of mana whenua status and signals its willingness to grant relief where the Crown has failed to properly protect customary interests.  Ani Mikaere might suggest that this is merely a “colonised mutation of tikanga”.[53] This essay should note that Mikaere is quite right, and while this will not be explored here, Coates has identified some of the questions raised by the recognition of tikanga as a system of law by the state legal system, noting:[54]

The degree of autonomy that Māori have over the content, application and interpretation of their tikanga; the corresponding standard of required evidential proof; and the best practices to avoid cultural misunderstandings.

These are very interesting and difficult questions which require further exploration. However, this essay acknowledges that tikanga would still continue to exist outside of recognition by the state legal system. Any recognition of tikanga as a source of the common law should not impair the tikanga that is developed and used on marae.[55]

Although there are issues such as these that remain to be explored, this essay's argument is that the Court's decision in Ngāi Tai is a significant development because it moves away from tikanga as a relevant consideration in a balancing exercise, to a new approach beyond balancing and into the unknown. This should not be down-played.

In Takamore v Clarke, Ngāi Tūhoe custom regarding burial was a relevant cultural consideration to be taken into account, but ultimately could not dictate the decision because “the common law requires an executor to make the final decision as to the method and place of burial” whereas “Tūhoe custom permits the taking of the body without agreement”.[56] Consequently, the common law position prevailed, despite the importance of Mr Takamore’s whakapapa-based connection with Ngāi Tūhoe custom.

Such an interpretation has reinforced tikanga as merely a relevant consideration rather than its own system of law. Moving beyond “mere balancing” requires tikanga to be considered as its own legal concept, beyond the common law method of evaluation, in light of other extrinsic aids which provide for the special position Māori occupy as tangata whenua. The courts' mutual recognition of tikanga as a concept independent of the balancing method shifts New Zealand closer to the advent of legal pluralism.

Limitations of statutory interpretation

Nevertheless, Ngāi Tai should not be overstated. There are intrinsic limits to statutory interpretation which confines the extent to which Treaty principles are “given effect” through the interpretation and implementation of legislation by Crown administration and by the courts.

The fundamental problem with the courts' application of Treaty principles are the built-in restrictions imposed through statutory interpretation methods. The interpretation of s 4 as a “powerful” provision derives its status from the requirement to “interpret and administer” the Act in order to give effect to the Treaty principles. The drafters can essentially dictate the strength of and redefine their Treaty obligations through statutory drafting technique and Crown decisions on the strength of Treaty clauses in legislation. While s 4 is a relatively broad provision, other statutory provisions have been drafted to limit the practical application of the Treaty principles.

For example, s 12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act expressly provides for specific duties in order to give effect to the Treaty principles. The High Court in The Taranaki-Whanganui Conservation Board, and other Appellants v The Environmental Protection Authority held that to give effect to Treaty principles beyond these prescriptive requirements would “overstate” the Crown's obligations.[57] This narrow interpretation only gives effect to Treaty principles to the extent they are prescribed for in the Act.

Such an approach can exclude tikanga concepts such as kaitiakitanga and mana whenua from being given their full effect as required by a broad provision. Ngāi Tai is merely based on statutory interpretation of a strong Treaty provision. It may not necessarily uphold or legitimise tikanga as an equal system of law, otherwise, if it did, the wording of s 4 would be redundant.

Matthew Palmer has argued that simple reference to the Treaty leaves the legal and policy implications unclear on the face of the statute and leave discretion to fill in their meaning to lawyers’ arguments and judges’ decisions.[58] However, Māmari Stephens has argued, Māori customary law is uncertain but entirely able to engage with, and be influenced by, concepts that derive from western sources of law.[59] And, while this article notes that lawyers and judges’ are currently poorly placed to forge arguments on tikanga, such expertise and understanding of tikanga must be attained through making space for tikanga experts to advise on the relevant tikanga and its application to a particular case before the courts.

Conclusion

Ultimately, while Ngāi Tai re-defines the practical application of Treaty principles, it remains subject to rights-based recognition within a colonial system. The displacement of the balancing exercise provides opportunities for lawyers and judges to develop arguments and reasoning about tikanga as a legal concept in its own right, rather than a mere consideration to be taken into account.  This development may lead courts to consider moving beyond common law methods of statutory interpretation, and explore the advent of legal pluralism in New Zealand.

Bibliography

Cases

Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122.

Ngāi Tahu Māori Trust Board v Director-General of Conservation [1995] 3 NZLR 553.

NZ Māori Council v Attorney-General (Broadcasting Assets) [1994] 1 NZLR 513.

NZ Māori Council v Attorney-General (Forests) [1989] 2 NZLR 142.

NZ Māori Council v Attorney-General (Lands) [1987] 1 NZLR 641.

Takamore v Clarke [2013] 2 NZLR 733.

The Taranaki-Whanganui Conservation Board, and other Appellants v The Environmental Protection Authority  [2018] NZHC 2217.

Te Rūnanga o Muriwhenua v Attorney-General [1990] 2 NZLR 641.

Legislation

Conservation Act 1987.

Books and Chapters in Books

John Burrows “Origin stories and the law” Jones and Hickford (ed) Indigenous Peoples and the State: International perspective on the Treaty of Waitangi (Routledge, New York, 2019) at 30 – 56.

Glen Sean Coulthard “The Politics of Recognition in Colonial Contexts” in Red Skin, White Masks (University of Minnesota Press, Minneapolis, 2014).

Robert A Williams Linking Arms Together: American Indian Visions of Law and Peace, 1600 – 1800 (Routledge, New York, 1999).

Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in Belgrave, Kawharu and Williams (ed) Waitangi Revisited: perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 2005).

Carwyn Jones “Reconciling Legal Systems” in “New Treaty, New Tradition: Reconciling New Zealand and Māori Law” (Victoria University Press, Wellington, 2016).

Carwyn Jones “Māori and State visions of law and peace” in Jones and Hickford (ed) Indigenous Peoples and the State: International perspective on the Treaty of Waitangi (Routledge, New York, 2019) at 13 – 29.

Margaret Mutu Constitutional Intentions: the Treaty of Waitangi Texts in Mullholland and Tawhai (ed) Weeping Waters: the Treaty of Waitangi and Constitutional Change (Huia, New Zealand, 2011).

Jactina Ruru “The failing modern jurisprudence” Jones and Hickford (ed) Indigenous Peoples and the State: International perspective on the Treaty of Waitangi (Routledge, New York, 2019) at 111 – 126.

James Tully, Public Philosophy in a New Key: Vol. 1. – Democracy and Civic Freedom, (Cambridge: Cambridge University Press, 2008).

David Williams “Originalism and the constitutional canon” in Jones and Hickford (ed) Indigenous Peoples and the State: International perspective on the Treaty of Waitangi (Routledge, New York, 2019) at 57 – 74. 

Journal Articles

Natalie Coates “The Recognition of Tikanga in the Common Law of New Zealand” (2017) 5 Te Tai Haruru 25 at 50.

Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25 NZULR 703.

Matthew Palmer “The Treaty of Waitangi in Legislation” [2001] 207 NZLJ.

Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protections in Aotearoa New Zealand” [2019] 9 VUWLRP.

Joseph Williams Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law (2013) 21 Waikato Law Review 1.

Reports

Waitangi Tribunal, Manukau Report (Wai 8, 1985).

Waitangi Tribunal, Orakei Report (Wai 9, 1987).

Waitangi Tribunal, Mangonui Sewerage Report (Wai 17, 1988).

Waitangi Tribunal, Mohaka River Report (Wai 119, 1992).

Waitangi Tribunal, Te Arawa Representative Geothermal Resource Report (Wai 153, 1993).

Waitangi Tribunal, Ngāwhā Geothermal Resources Report (Wai 304, 1993).

Parliamentary and Government Materials

Te Arawhiti Committee “Responding to the Ngāi Tai ki Tāmaki Supreme Court decision and giving effect to Treaty principles in ConservationDepartment of Conservation (August 2019) <https://www.beehive.govt.nz/sites/default/files/2019-08/cabinet-paper-ngai-tai-ki-tamaki-supreme-court-decision-response.pdf

Notes

[1] Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122.

[2] Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25 NZULR 703 at 715.

[3] At 717; See also Glen Sean Coulthard “The Politics of Recognition in Colonial Contexts” in Red Skin, White Masks (University of Minnesota Press, Minneapolis, 2014).

[4] At 710 – 711.

[5] At 710.

[6] At 712.

[7] At 713.

[8] At 715.

[9] At 717.

[10] Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation, above n 1, at [11].

[11] At [5].

[12] At [62].

[13] At [29].

[14] At [73].

[15] At [83] and [84].

[16] At [94].

[17] At [107].

[18] At [96] and [109].

[19] Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation, above n 1, at [62].

[20] NZ Māori Council v Attorney-General (Lands) [1987] 1 NZLR 641per Cooke P at 664; see also Lands per Richardson J at 682; per Somers J at 692-693; and per Casey J at 702.

[21] NZ Māori Council v Attorney-General (Forests) [1989] 2 NZLR 142.at 152.

[22] NZ Māori Council v Attorney-General (Broadcasting Assets) [1994] 1 NZLR 513 at 517.

[23] Lands, above n 20, per Cooke P at 665-666.

[24] Waitangi Tribunal, Manukau Report (Wai 8, 1985).

[25] Lands, above n 20, per Cooke P at 664.

[26] Broadcasting Assets, above n 22, at 517.

[27] Waitangi Tribunal, Mohaka River Report (Wai 119, 1992) at 77.

[28] Waitangi Tribunal, Ngāwhā Geothermal Resources Report (Wai 304, 1993) at 100–102. These points are quoted with approval in the Te Arawa Representative Geothermal Resource Report (Wait 153, 1993) at 31-32.

[29] Lands, above n 20, per Cooke P at 664-665.

[30] Waitangi Tribunal, Orakei Report (Wai 9, 1987).

[31] Waitangi Tribunal, Mangonui Sewerage Report (Wai 17, 1988) at 60.

[32] Ibid.

[33] Natalie Coates “The Recognition of Tikanga in the Common Law of New Zealand” (2017) 5 Te Tai Haruru 25 at 50.

[34] Takamore v Clarke [2013] 2 NZLR 733 per Elias CJ at [92].

[35] Takamore v Clarke, above n 24, per Tipping, McGrath and Blanchard at [164] and per Elias CJ at [94].

[36] Jacinta Ruru “The failing modern jurisprudence” Jones and Hickford (ed) Indigenous Peoples and the State: International perspective on the Treaty of Waitangi (Routledge, New York, 2019), at 118 – 122;  Joseph Williams Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law, (2013) 21 Waikato Law Review 1 at 17 – 22.

[37] Joseph Williams, above n 36, at 20.

[38] Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation, above n 1, [61].

[39] Ngāi Tahu Māori Trust Board v Director General of Conservation (Whales) [1995] 3 NZLR 553.

[40] Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation, above n 1, at [79].

[41] Whales, above n 39, at 15.

[42] Ngāi Tai Ki Tāmaki Tribal Trust v Minister of Conservation, above n 1, at [52].

[43] At [106].

[44] At [36].

[45] At [42].

[46] At [45].

[47] At [50].

[48] At [54].

[49] At [106].

[50] At [94].

[51] At [107].

[52] At [98].

[53] Ani Mikaere, “The Treaty of Waitangi and Recognition of Tikanga Māori” in Belgrave, Kawharu and Williams (ed) Waitangi Revisited: perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 2005) at 343 – 344.

[54] Natalie Coates, above n 33, at 60.

[55] Perhaps a more interesting yet difficult question to explore: if tikanga is recognised as a source of the common law, how will the tikanga made in the court room affect the tikanga made in the marae? See Coates, above n 33, at 56 – 60.

[56] Takamore v Clarke, above n 34, per Elias CJ at [36].

[57] The Taranaki-Whanganui Conservation Board, and other Appellants v The Environmental Protection Authority  [2018] NZHC 2217 at [215].

[58] Matthew Palmer “The Treaty of Waitangi in Legislation” [2001] 207 NZLJ at 210.

[59] Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protections in Aotearoa New Zealand” [2019] 9 VUWLRP at 4.