September 2023 Māori Law Review

Tikanga Māori in Aotearoa New Zealand law – He Poutama

He Poutama

Te Aka Matua o te Ture | Law Commission

Pūrongo Rangahau | Study Paper 24 (SP24)

21 Mahuru | September 2023

Download He Poutama (5.56 MB)

Whakataunga - Overview

Te Aka Matua o te Ture | the Law Commission's new study paper, He Poutama (NZLC SP24), aims to support state law to engage with tikanga in ways which are authentic and "respectful of both systems' parameters".

The Commission describes the objective of the Study Paper as follows:

The Study Paper's purpose is to offer guiding frameworks that will enable the coherence and integrity of both tikanga and state law to be maintained. To legitimately address tikanga, an authentic understanding of it is also needed. The Study Paper aims to build understanding of tikanga that is both grounded in mātauranga (Māori knowledge) and connected with law. (at [1.4])

Kōrerorero - Discussion

The Law Commission begins with the premise that "Tikanga and state law now co-exist in Aotearoa New Zealand's legal landscape". The Study Paper, therefore, does not engage in arguments about whether or not state law and tikanga should engage with one another. Because these two systems are already interacting, the Law Commission takes the view that it is of greater utility to identify appropriate ways for that interaction to occur.

Tukutuku metaphor

The Study Paper uses tukutuku as a metaphor for future engagement between state law and tikanga. As described in the Study Paper, 'Tukutuku are latticework panels, formed of vertical stakes (kākaho) and horizontal rods (kaho) stitched with traditional patterns ... Puhanga Patrica Tupaea (Ngāti Koata) describes giving and receiving back the thread, away from oneself and towards oneself: "tuku atu, tuku mai". Tukutuku thus implies values of reciprocity and connection." (at [1.28])

The tukutuku metaphor is explained as follows:

Metaphorically, if tikanga were considered as the vertical stakes (kākaho) of a tukutuku, state law might be considered as the horizontal rods (or kaho). Tukutuku then represents a metaphorical process of connecting and binding together the kākaho of tikanga and the kaho of state law. The participants, Māori and the state, might be considered as the people working on each side of the panel. (at [1.29])

Structure of the Study Paper

The Study Paper is organised in three parts:

Tikanga
Interaction between tikanga and state law
Future engagement

Part one: Tikanga

Part One is concerned with understanding tikanga from within mātauranga Māori:

(a) Chapter 2 begins by describing some steps towards understanding tikanga. It connects tikanga with mātauranga and explains the Māori creation narratives called pūrākau, identifying them as sources of tikanga. This chapter then suggests that the marae meeting houses, wharenui, represent a useful starting point for tikanga exploration.

(b) Chapter 3 introduces core tikanga concepts. The explanation developed in this chapter provides a bridge to understanding tikanga concepts as a unified system of norms, drawing upon explanations by mātauranga experts.

(c) Based upon the framework of tikanga concepts that Chapter 3 has outlined, Chapter 4 gives a guide for tikanga engagement, illustrated with six hypothetical case studies.

Part two: Interaction between tikanga and state law

Part Two provides a thematic overview of the interactions since 1840 between tikanga and state law:

(a) Chapter 5 reviews how the common law has engaged with tikanga.

(b) Chapter 6 examines the evolving approach taken by the state to recognition of tikanga in legislation.

(c) Chapter 7 considers the way specific areas of the law in the modern legal landscape interact with tikanga, including family law, ture whenua Māori (Māori land law), environment law and criminal law.

Part three: Future engagement

Part Three looks to the future and considers pathways to appropriate engagement between tikanga and state law:

(a) Chapter 8 proposes principles for proper engagement with tikanga by the courts consistent with the “common law method”.

(b) Chapter 9 discusses ways in which government agencies could approach engagement with tikanga when developing policy and legislation.

(c) Chapter 10 completes the Study Paper. It briefly reflects on the key contributions made, acknowledges perspectives that have been beyond our scope and notes that other future pathways for tikanga recognition remain open.

External research papers

Three external research papers which were commissioned for this project each contributed to the shaping of the Study Paper are significant resources in their own right and are attached as appendices to the Study Paper:

"Tikanga", a paper prepared by Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi addresses tikanga as a system of law, on its own terms. The Study Paper notes this paper 'orients tikanga within what the Awanuiārangi pūkenga identify as systems of Māori knowledge and provides an account of tikanga including discussion of the symbolic importance of wharenui and an overview of tikanga concepts.'
"Kei Raro i Ngā Tarutaru, Ko Ngā Tuhinga o Ngā Tūpuna | Beneath the Herbs and Plants are the Writings of the Ancestors" is a review of tikanga evidence given in Waitangi Tribunal and court hearings. This paper, prepared by Natalie Coates and Horiana Irwin-Easthope, 'reviews more than 800 briefs of tikanga evidence providing hapū and iwi perspectives from throughout Aotearoa New Zealand. The paper synthesises themes which the evidence suggests are important to hapū and iwi.'
"Interlegality, Interdependence and Independence: Framing Relations of Tikanga and State Law in Aotearoa New Zealand" is a paper commissioned from Associate Professor Nicole Roughan to examine approaches to engagement between Indigenous and state legal systems.

Tikanga concepts

The Study Paper identifies (at [3.16]) a core group of concepts that are seen to be central to tikanga as a system:

(a) Concepts of connection: whakapapa and whanaungatanga, which we describe as structural norms. All of te ao Māori (the Māori world) is shaped by reference to these concepts, and the relationships that they describe establish an underlying normative frame.
(b) Concepts of equilibrium or balance: mauri, utu and ea. In Māori society, these concepts function as prescriptive norms, which must be maintained.
(c) Concepts relating to the status of an entity: mana, tapu and noa. These order Māori society and are significant in sustaining and protecting mauri (which refers to life force, or the essential quality and vitality of all things). We consider mana, tapu and noa are relational norms that achieve regulative purposes. Relationships are organised and interactions defined by reference to these concepts.
(d) Concepts of responsibility, which can be identified as associated norms: kaitiakitanga, manaakitanga, aroha and atawhai. These are closely connected with the concepts of mana and whanaungatanga.
(e) Processes and procedures, or kawa. These are significant in upholding all of the norms we refer to above. They administer tikanga as a system and are means of regulating mauri, mana, tapu and noa. We give four examples: pōwhiri (a welcome), rāhui (a restriction), muru (a ritual of claiming compensation) and karakia (ritual prayer). [emphasis in original]

A Guide for Engaging with Tikanga

Based on understanding tikanga as a system of law grounded in core concepts, the Study Paper suggests a high-level guide for engaging with tikanga: (at page 102)

Step 1: Identify the tikanga
Identify the concepts of tikanga Māori that are engaged by the factual situation, including associated responsibilities and relevant tikanga processes and procedures. Where tikanga is engaged at an iwi, hapū or whānau level, identify how the concepts, including the associated responsibilities and processes or procedures, are expressed by those iwi, hapū or whānau. Consider the following:
(a) The structural concepts of whakapapa and whanaungatanga.
(b) The relational concepts of mana, tapu and noa arising from the status of an entity and
(i) to the extent mana is engaged, its source; and
(ii) to the extent mana and tapu are engaged, the relevance of that to the protection of mauri.
(c) Responsibilities associated with the structural and relational concepts, including, for example, kaitiakitanga, manaakitanga and aroha.
(d) The take in the context, and the prescriptive concepts of utu and ea for maintaining balance.
(e) Any other concepts of tikanga Māori that are engaged.
(f) Any tikanga processes or procedures that have been, are, or could be engaged.
Step 2: Identify relevant kōrero tuku iho and related mātauranga, including, for example, whakataukī, whakatauākī, waiata and mōteatea
Identify any relevant kōrero tuku iho and related mātauranga such as whakataukī, whakatauākī and mōteatea to build understanding of the tikanga engaged and their application in context. Where tikanga is engaged at an iwi or hapū level, identify how kōrero tuku iho and related mātauranga are expressed by those iwi and hapū.
Step 3: Identify other similar situations
(a) Where tikanga is being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred within the iwi, hapū and whānau.
(b) Where it is difficult to identify similar situations within the whānau, hapū and iwi, consider similar situations in other iwi of the same waka before identifying similar situations in any iwi, hapū or whānau.
(c) Alternatively, where tikanga is not being engaged at an iwi, hapū or whānau level, identify any similar situations that have occurred in any iwi, hapū or whānau.

Principles for common law engagement

Having reviewed Supreme Court and Court of Appeal authorities on how state law should engage with tikanga, the Study Paper identifies general guidance that can be extracted from those decisions: (at [8.39])

(a) Tikanga has been, and will continue to be, recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant.
(b) Tikanga is the first law of Aotearoa New Zealand and continues to shape and regulate the lives of Māori.
(c) When dealing with common law dispute resolution, if tikanga forms part of a person’s heritage, the common law may require consideration of tikanga. However, the potential relevance of tikanga to common law adjudication is not confined to Māori.
(d) Tikanga must not be viewed through a non-Māori lens, or shoehorned into an English law framework. It should be defined by reference to tikanga as a complete system in which the core concepts are intertwined and exist as an interconnected matrix. Tikanga is a principles-based system of law, capable of adaptation according to context.
(e) There are clear limits to common law engagement with tikanga. The courts must not exceed their function when engaging with tikanga, and care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.
(f) The common law cannot give effect to tikanga that is contrary to statute or to fundamental principles and policies of the law.
(g) Where tikanga may clash with other values in society, existing principles or common law, this conflict will need to be worked through.
(h) Whether tikanga conflicts with existing values and principles should be considered against the underlying tikanga values or principles rather than any particular observed tikanga practice. Further, there is no presumption in favour of non-Māori legal norms.

Ngā kupu whakatepe - Conclusion

The Study Paper concludes by returning to the tukutuku metaphor: (at [10.4]-[10.5])

Throughout this Study Paper, underlying all of its thought, we have had in mind the tukutuku process and the values imbued in that process explained in our introduction. Tukutuku is a way of picturing the interaction between tikanga and state law and describing values associated with such a process to guide future engagement. The tukutuku process involves two people positioned on either side of a lattice panel, working to bind or lash together the panel’s vertical stakes (kākaho) and horizontal rods (kaho). Metaphorically, if tikanga were viewed as the vertical stakes and state law as the horizontal rods, the interaction that is occurring is an incremental process of, one stitch at a time, lashing together these diverse legal norms. In Chapter 1, we foreshadowed this as a way of describing how state actors and Māori may work together within the state law space.
However, to realise this, much more work is needed. The engagement of both common law and statute with tikanga continues to evolve at a rapid pace. The principles and processes for engagement are not yet settled and are being tested every day, whether in terms of the common law, statute law or policy making. There remain significant risks that tikanga may be adversely affected by state law, particularly if and where state law continues to assume the primary responsibility for defining and developing tikanga-related law. Tikanga and tikanga institutions remain especially vulnerable to the machinery of the state, and there remain concerns that the coherence of state law may be adversely affected by the unfettered incorporation of tikanga. All of this emphasises the need for care and manaakitanga by state institutions in the interpretation and application of tikanga. In this paper overall we have therefore adopted a modest, incremental approach — a slow weave.