He Poutama

Te Aka Matua o te Ture | Law Commission

Pūrongo Rangahau | Study Paper 24 (SP24)

21 Mahuru | September 2023

He Poutama is a study paper by Te Aka Matua o te Ture | Law Commission. The paper aims to provide frameworks for the interaction between tikanga Māori and common law and statute.  Members of Bell Gully’s Te Paewhiti Ture are working with the Māori Law Review to publish a series of articles on He Poutama addressing some of the detail of the Commission’s paper. This is the second article. Go here for the first article and here for the third and final article.

By members of Te Paewhiti Ture, Bell Gully: Rachael Brown, Dr Laura Hardcastle, Rebekah Te Rito (Ngāti Kahu and Ngāti Kahungunu), Rhianna Morar (Ngāti Porou, Tapuika, Gujarat) and Stuart Leslie (Ngāpuhi)

Download He Poutama (5.56 MB)

Hei tīmatanga - Introduction

In the second of three articles, we consider Part Two of He Poutama, which provides an overview of the historical and continuing engagement between tikanga and state law. In summarising Part Two, we:

1. provide an overview of how tikanga and the two main sources of state law (namely, common law and statute) interact; and
2. consider how specific areas of state law have engaged with tikanga over time.

Kōrerorero - Discussion

Tikanga and the Common Law (Chapter 5 of He Poutama)

The Commission opens Part Two by addressing the interactions between common law and tikanga over time. Specifically, Chapter 5 discusses the developments in case law since 1840, from early recognition of tikanga as customary law, through its subsequent dismissal by colonial courts, to modern decisions which have seen tikanga recognised both as a set of values that inform the development of the common law, and as law that operates in its own right.

Early developments: tikanga as customary law

In the Commission’s view, the earliest interactions between common law and tikanga were shaped by two doctrines:

• the doctrine of continuity, which recognises pre-existing rights; and

• the doctrine of native title, which holds that radical title (being the underlying title acquired by the Crown in all land) is subject to existing native rights.^[1]

These doctrines then shaped two key lines of cases: those involving property rights and those involving general custom.

Before discussing the courts’ treatment of Māori customary property rights, the Commission acknowledges that transforming tikanga-based relational rights into alienable property rights is contrary to the way in which relationships between humans and the whenua (land) are understood in accordance with tikanga.^[2] On that basis, the Commission suggests that “[r]ecognition in the form of alienable property rights or interests, while affirming rights to land in the common law, could thus not have been a direct application or recognition of tikanga”.^[3]

While modern courts take a different approach to the recognition of Māori customary property rights than that taken historically, the progression has not been linear. Rather, the Commission categorises cases on property rights into three broad themes, being:

• Cases which reject any customary proprietary rights outright: For example, the Court in Wi Parata v Bishop of Wellington described the Treaty of Waitangi (the Treaty) as a “simple nullity” and dismissed the reference in the Native Rights Act 1865 to “Ancient Custom and Usage of the Māori”, by stating that “a phrase in a statute cannot call what is non-existent into being”.^[4] While this idea of the Treaty as a simple nullity was rejected by the Privy Council in 1901’s Nireaha Tamaki v Baker, the influence of Wi Parata continued well into the twentieth century.^[5]
• Cases finding that customary interests exist but are not enforceable: Wi Parata was not universally applied by the courts.  For example, the Court in Mangakahia v New Zealand Timber Co (1884) recognised that the Treaty was not a simple nullity and that customary interests in land did exist. Despite this, the Court found that such customary interests were not rights which could be enforced in the ordinary courts.^[6] Meanwhile, in other cases, the courts held that it was for the Crown to recognise customary interests, or else found that such rights were overridden by statute or other common law norms.^[7]
• Cases recognising that customary proprietary rights do exist and are enforceable: Prior to Wi Parata, the Court in R v Symonds had accepted custom as giving rise to property rights/interests,^[8] and following that decision other cases recognised Māori customary proprietary rights in particular areas, including lake beds,^[9] river beds,^[10] and the foreshore.^[11] However, these remained isolated cases.

Following on from the latter category of cases, the modern approach has developed to recognise that customary proprietary rights are enforceable in the ordinary courts unless expressly extinguished by statute.^[12] For example, in Paki v Attorney-General, the Supreme Court determined that “application of the common law presumption of riparian ownership to the middle of the flow could not arise until Maori customary interests were excluded”.^[13] The Supreme Court went further in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board observing that tikanga “has been treated as norms influencing the development of the common law” and “tikanga as law” is a subset of customary values and practices as referred to in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act), meaning that tikanga was “applicable law”.^[14] Based on these cases, the Commission concludes that tikanga is now being recognised as both a strand of the common law and as law in its own right.^[15]

Chapter 5 of He Poutama also considers cases regarding ‘general custom’, which is described as “all customs that are not concerned with interests or rights in property”.^[16] The Commission commences its discussion of such cases with the 1908 decision in Public Trustee v Loasby, which found that custom could give rise to enforceable rights, but only where that custom:^[17]

• was proved to have existed as a general custom;
• was not contrary to statute; and
• was reasonable, taking the whole of the circumstances into account.

The criteria set out in Loasby were endorsed much later by the Court in Huakina Development Trust v Waikato Valley Authority (1987). The Court there held that “customs and practices that include spiritual elements are cognisable in a court of law provided they are property established, usually by evidence”.^[18] Similar decisions were reached in 2004 and 2008.^[19] However, recent decisions have rejected the Loasby test for custom, with Glazebrook J in Ellis v R (Continuance) stating that such incorporation rules were “colonial relics with no place in modern Aotearoa New Zealand”.^[20]

Further developments: tikanga values and tikanga as law

In recent years, the common law’s engagement with tikanga has shifted away from the recognition of customary proprietary rights. Instead, cases have recognised:^[21]

• Tikanga as a source of values that inform the common law: The Supreme Court’s 2012 decision in Takamore v Clarke was the first to hold that the common law could be informed by tikanga values.^[22] This was a significant departure from the Loasby test.^[23] Following Takamore, the courts have begun to consider how tikanga values might inform the common law, and when it might be appropriate for this to occur.^[24] For example, the Supreme Court in Ellis (2022) had to determine “whether tikanga could have any effect on the test for whether an appeal should continue in the event of the appellant’s death” in a case where neither Mr Ellis nor his alleged victims were Māori.^[25] The Supreme Court expressed the unanimous view that tikanga will continue to be recognised in the development of the common law where it is relevant (notwithstanding that the persons directly involved were not Māori), and that tikanga forms part of state law as a result of being incorporated into statutes and regulations.^[26]
• Tikanga as law in its own right: Modern courts have also recognised tikanga as law in its own right, existing without the need for the Loasby incorporation rules.  However, while tikanga exists separately from state law, declarations made by the courts about tikanga may have legal consequences within the state law system.^[27] Justice Palmer in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) held that tikanga is a “free-standing” legal framework recognised by state law;^[28] however, tikanga does not bind the Crown or otherwise directly modify the common law or statutory law that binds the Crown.^[29] Courts in other cases have also cautioned that tikanga is highly contextual and its application will depend on the particular facts of the case.^[30]

The Commission then concludes its analysis by noting that, with the courts having moved away from their original reliance on rules of incorporation, the way is now open for recognising tikanga both as a source of values that informs the common law, and as a source of law in its own right.^[31]

Tikanga and Statute Law (Chapter 6 of He Poutama)

Building on the previous chapter, Chapter 6 addresses how statute law has engaged with tikanga over time. The Commission divides its discussion of tikanga and statute law into two time periods, pre and post 1975, due to the shift in societal and government attitudes towards Māori generally at that time.^[32] The table below sets out the various approaches to recognising tikanga identified by the Commission in legislation from before 1975:

From the above, the Commission makes the following observations about the different methods used in statute to engage with tikanga prior to 1975:

• Recognition was sometimes used as a tool for assimilation: The Commission recognises that not every mention of custom was designed to assimilate or extinguish custom. However, citing Sir Joseph Williams (writing extra-judicially), it notes that recognition seemed to occur at “points along a journey to jurisdictional amalgamation” rather than there being continual recognition of ongoing custom.^[46]
• Legislative direction was not always followed: Strongly-worded legislative directions to determine matters according to “native custom” were not always followed, including as those applying the legislation sought to apply it by reference to existing English legal concepts to create customs to help Māori move on from “ideas which prevailed in savage times”.^[47]
• Statutes did not resolve differences between prevailing English legal theory and tikanga: The Commission observes that the legislature did little to explain how English law and tikanga were to operate, nor did it attempt to engage with tikanga beyond references to custom.^[48]

The numerous Māori-led protests of the 1970s resulted in social and political developments which shifted the approach to engaging with tikanga after 1975.  Phrases such as “native customs” were replaced with “tikanga”, and kupu Māori (Māori words) which engaged tikanga concepts were used more frequently.^[49] The table below sets out the various approaches to recognising tikanga identified by the Commission in legislation after 1975:

The Commission’s analysis therefore indicates a shift in how tikanga has been addressed in legislation over time.

Tikanga and State Law Today (Chapter 7 of He Poutama)

In Chapter 7, the Commission considers the ways in which specific areas of state law interact with tikanga.^[64] In this section, we provide a brief overview of the engagement with tikanga of each of the areas of law identified by the Commission.

Tikanga and environmental law

First, the Commission highlights the place of tikanga in environmental law. Specifically, it considers the RMA, which includes various statutory provisions requiring consideration of tikanga as part of exercising powers and functions. The RMA also includes as defined terms concepts such as tikanga Māori, kaitiakitanga, tangata whenua and mana whenua.^[65] The High Court in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd held that these terms need to be applied according to tikanga Māori.^[66]

The RMA also includes provisions requiring decision makers to take into account the principles of the Treaty,^[67] the relationship of Māori, their culture and traditions with the environment.^[68] These are in addition to provisions which enable Māori, iwi and hapū to participate in resource management decision-making,^[69] including through the development of Mana Whakahono a Rohe.^[70]

However, the Commission notes that the courts have struggled when engaging with the holistic nature of tikanga, meaning that there is not necessarily a division between spiritual and physical matters.^[71] As an example, the Environment Court in Beadle v Minister of Corrections considered that the effects on the local taniwha (a guardian) named Takauere were not justiciable as there was no reliable basis to decide between conflicting claims about spiritual beings.^[72] In a subsequent decision, the High Court later found that, if the Environment Court had excluded the taniwha from its assessment entirely, it would have failed to recognise and provide for the relationship of Māori with their culture and taonga.^[73]

The Commission further highlights the recurring issue of identifying those who exercise mana (spiritually sanctioned authority) over a particular area in environmental law cases. The Commission identifies the case of Director-General of Conservation v Taranaki Regional Council as demonstrating the type of assessment required when considering mana whenua status. In that case, the Environment Court referred to whakapapa (genealogical connection) and whanaungatanga (kinship or familial connection), noting that a group of residents who described themselves as Poutama had no whakapapa to the land which was corroborated by the lack of evidence in the form of waiata (song) or whakataukī (proverb). Consequently, the Court found that the group had not established any proper basis for asserting kaitiaki status in accordance with tikanga.^[74]

Tikanga and criminal law

The Commission opens its analysis of tikanga and criminal law by noting that neither the Crimes Act 1961 nor the Sentencing Act 2002 directly engages with tikanga. Despite this, the Commission identifies the following ways in which tikanga has been recognised in the criminal justice system:^[75]

• Cultural reports: Section 8(i) of the Sentencing Act, along with the preparation of cultural reports pursuant to section 27 of that Act, have enabled the courts to consider cultural factors when sentencing.^[76] The Court of Appeal in Henare v R considered that the concept of whakamā (the outward expression of inward disintegration) may be a “unique mitigating factor when sentencing a Māori defendant”.^[77] On appeal, the Supreme Court affirmed that whakamā is a matter of general or public importance but found that it did not arise on the facts.^[78]
• The incorporation of tikanga in solutions-focused courts and rehabilitative programmes: Examples include Te Whare Whakapiki Wairua | Alcohol and Other Drug Treatment Court, Te Kōti Rangatahi | Rangatahi Court and Te Kooti o Matariki | Matariki Court, which all embed tikanga into their processes and are assisted by a relevant cultural advisor and/or kaumātua and kuia (male and female elders).^[79] In particular, in Te Kooti o Matariki, kaumātua from Ngāpuhi (the local iwi) alongside the Crown prosecutors guide the proceedings, including through the use of karakia (prayers or incantation) and mihi (acknowledgement) where appropriate.^[80]
• Other criminal law related initiatives that engage tikanga: The Commission identifies other programmes utilising tikanga in restorative justice. One example is Te Whānau Awhina, a programme run out of Hoani Waititi Marae to be used by Māori and non-Māori alike.^[81] Another example identified is Te Ao Mārama, a programme focussed on “incorporating best practices developed in the District Court’s specialist courts into its mainstream criminal jurisdiction”.^[82]

In addition to the above, the Commission notes that Māori defendants have occasionally argued that they should be dealt with according to tikanga, not under the Crimes Act.^[83] However, the High Court in R v Mason (2012) rejected an alternative criminal jurisdiction based on Māori custom “noting that the need to rebuild customary practices made an alternative customary system unviable”.^[84] In doing so, it endorsed a 1991 Court of Appeal case which stated that “tikanga is not presently a viable legal process for serious crime”.^[85]

Tikanga and family law

Guided by the Department of Social Welfare’s Puao-te-Ata-tu report, which marked the start of engaging with tikanga in family law, the Commission addresses how tikanga is recognised in specific areas of family law, including:^[86]

• The care and protection of young people: The Oranga Tamariki Act 1989 (OT Act) provides for the recognition of children and young persons within their whānau, hapū and iwi. It further includes general principles that require decision makers to consider tikanga concepts, such as mana tamaiti (a child or young person’s intrinsic value and inherent dignity), and enable whānau, hapū and iwi participation in decision making.^[87]
• Guardianship outside of the care and protection framework: The Care of Children Act 2004 (COCA) sets out principles that relate to a child’s welfare and best interests, which include that a child should continue to have a relationship with their whānau, hapū, or iwi, and that a child’s identity (including their culture) should be preserved and strengthened.^[88] The Commission identifies that, in practice, there is an overlap between the guardianship provisions contained in both the OT Act and the COCA.^[89]
• Whāngai and family law: Whāngai (raising or adopting children according to tikanga) is recognised as having no legal force or effect under state law.^[90] Despite this, tikanga has become relevant when assessing the welfare and best interests of a child under the Adoption Act 1955.^[91] The Family Protection Act 1955 does not allow whāngai to make a claim for further provision from the estate of their mātua whāngai (parents under a whāngai arrangement). However, the Commission has recommended previously that the extent to which whāngai should receive provision from the estate of the matua whāngai and/or the estate of the birth parent is a question that should be informed by the tikanga of the relevant whānau.^[92]

Tikanga and judicial review

Before considering the development of tikanga in judicial review, the Commission begins by considering the impact of the Treaty^[93] on judicial review decisions.

The starting point is that the Treaty is not directly enforceable in the courts.^[94] One of the grounds for judicial review is a claim that a decision-maker has not taken into account certain considerations that are relevant to the decision-making process and which it is required to consider, either by statute or the particular context of the decision.^[95] Under this ground, the Treaty has been identified as relevant in the following cases:

• Huakina Development Trust v Waikato Valley Authority, where the Court found that, in the absence of express statutory incorporation, the Treaty could be relevant as an extrinsic aid in interpreting the relevant legislation;^[96]
• New Zealand Maori Council v Attorney-General (Lands case), in which the Court of Appeal held that the Crown was required to safeguard Māori claims regarding land covered by the State Owned Enterprises Act 1986 before any land could be transferred to a State enterprise;^[97]
• Attorney-General v New Zealand Maori Council (Radio Frequencies case), where the Court of Appeal found that the Crown, as a Treaty partner, could not act in accordance with the Treaty or its principles without taking into account the recommendations made by the Waitangi Tribunal;^[98] and
• Ngāti Whātua Ōrākei (No 4), in which the High Court found that it is possible for the terms and the principles of the Treaty to impose legal obligations on the Crown in relation to tikanga. However, whether there are such legal obligations, and what exactly they require, will depend on the particular statutory and factual context of the case.^[99]

In light of this, the Courts have increasingly referred to tikanga as a factor to be taken into account independently of the Treaty. Such an approach is illustrated by the following cases:

• Trans-Tasman Resources v Taranaki-Whanganui Conservation Board: The Supreme Court held that tikanga-based customary rights and interests were “existing interests” and that tikanga was to be considered as “other applicable law”, where appropriate, under the EEZ Act.^[100] Such tikanga-based customary rights and interests included kaitiakitanga (to care for and protect) responsibilities relating to the protection of the mauri (life essence) of the marine environment.^[101]
• Te Pou Matakana v Attorney-General: The High Court held that the Ministry of Health did not have adequate regard to the Treaty and its principles “as informed by tikanga” in deciding not to release information about Māori who had not yet been vaccinated against COVID-19.^[102] In that case, the Court considered the concept of whakapapa and health as a taonga within the context of a global pandemic.^[103]
• Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd: The Supreme Court stated that mana whenua is “a very important principle of tikanga” but was not absolute, and that tikanga, as a principled-based system of law, is highly sensitive to context and sceptical of unbending rules.^[104]
• Sweeney v Prison Manager, Spring Hill Corrections Facility: In order to uphold Mr Sweeney’s mana, the High Court issued a declaration that the decision to revoke Mr Sweeney’s specified visitor approval was unreasonable and therefore unlawful.^[105]

In relation to cases where an applicant is seeking judicial review of a Treaty settlement process, the Commission notes that the courts have previously refrained from adjudicating on the Treaty settlement process, but referred to the Supreme Court decision in Ngāti Whātua Ōrākei Trust.^[106] There, the Supreme Court held that the principle of non-interference does not preclude the courts’ jurisdiction to make declarations about rights, simply because the declaration sought may be the subject of legislation.^[107] Ngāti Whātua was therefore able to seek certain declarations as to rights, including in relation to whether the iwi had ahi kā (continuous occupation) and mana whenua (power of the land, authority over land), in specific areas of Tāmaki Makaurau.^[108] The subsequent High Court decision in Ngāti Whātua Ōrākei Trust (No 4), recognised that the Crown must take reasonable steps to understand, recognise and respect tikanga of iwi and hapū in a Treaty settlement context as a failure to do so would be unlawful.^[109]

Tikanga and the New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (NZBORA) does not expressly refer to tikanga, the Treaty or its principles, nor does it explicitly affirm any specific Māori rights. The Commission therefore explores the implied relevance of tikanga to the NZBORA in relation to several provisions:^[110]

• Right to freedom from discrimination: The Commission considers that section 19 of NZBORA (which deals with the right to freedom from discrimination) has the potential to protect the right of Māori to act in accordance with tikanga, although, there have not been any cases to this effect.^[111] Rather, the Commission finds that, in practice, freedom from discrimination has been used to obstruct the exercise of tikanga – such as in Bullock v Department of Corrections where it was held that a poroporoaki (farewell) discriminated against the female plaintiff on the basis that the front row was reserved for males, who were also the only ones able to speak in accordance with the tikanga of the event.^[112]
• The rights of minorities: The ‘rights of minorities’ as provided for in section 20 of NZBORA affords a degree of protection for tikanga as a right to enjoy one’s culture.^[113] For example, the District Court in Ministry for Primary Industries v Whati found that Mr Whati was entitled to collect kaimoana (seafood) from a mahinga kai without a permit by relying on the rights of minorities.^[114] However, the Commission acknowledges that Fleur Te Aho has cautioned previously that there may be a tension in relying on section 20, which relates to minority rights, to protect Māori rights as tangata whenua (people of the land or indigenous peoples).^[115]
• A justified limitation on rights affirmed under the Act: Section 5 of the NZBORA provides that the rights and freedoms contained in the NZBORA may be subject to limits that are demonstrably justified in a free and democratic society. The Commission notes that the potential of what constitutes a ‘justified limitation’ remains largely unexplored in relation to tikanga. However, notwithstanding this, the Commission considers that there is the potential for the courts to determine that tikanga constitutes a reasonable limit on other NZBORA rights.^[116]

Tikanga and evidence

The rules of evidence give rise to a number of issues relating to the provision of evidence regarding tikanga. On that basis, the Commission identifies the following evidential rules which may affect the admissibility of tikanga evidence:

• The hearsay rule: Hearsay statements (a statement made by someone other than the witness which is offered in evidence to prove the truth of its contents) are generally inadmissible unless subject to an exception, particularly if the circumstances in which the statement is made give reasonable assurance of its reliability.^[117] The Commission recognises that the rule against hearsay can pose difficulties for tikanga evidence, particularly given that mātauranga Māori (knowledge broadly shared by all Māori) is often transmitted orally according to tikanga.^[118]
• The opinion rule: Opinion evidence is generally inadmissible unless it is an expert opinion and is likely to provide substantial help to the fact finder.^[119] Notwithstanding this, the Commission notes that case law prior to the Evidence Act 2006 had recognised the admissibility of expert opinion evidence on tikanga from those with the appropriate qualifications.^[120]
• Evidence admitted by way of an agreed statement: A judge may admit otherwise inadmissible evidence with the unanimous agreement of all parties.^[121] For example, that was the mechanism in which the “Agreed Statement of Tikanga” was admitted in Ellis v R (Continuance).^[122]

Against that background, the table below outlines the different ways in which tikanga can be established as evidence as discussed by the Commission:

Tikanga and Māori land: Te Ture Whenua Māori Act 1993

Te Ture Whenua Māori Act 1993 (TTWMA) is the statutory regime that governs Māori land. TTWMA recognises that land is a taonga tuku iho (treasure handed down) of special significance to Māori. In the Commission’s view, its statutory purpose is therefore grounded in tikanga, acknowledging the importance of land for Māori as something which is handed down from ancestors. For that reason, the Preamble to the legislation promotes the retention of land by Māori and facilitates the occupation, development and use of that land for Māori benefit.^[131] The significance of land as a taonga tuku iho can be illustrated through core tikanga concepts identified by the Commission in earlier chapters, particularly the concepts of whakapapa and mana whenua.

In light of the statutory purpose, the Commission considers the specific parts of TTWMA that operate together to give effect to the special significance of land to Māori as a taonga tuku iho:

• Land status and restrictions on alienation: In determining the status of land, the Māori Land Court must have regard to the retention of Māori land and the effective use, management and development of such land.^[132] This, coupled with the restrictions on alienation of Māori Land, can create tension with the utilisation of that land for the benefit of the relevant owners, whānau, and hapū.^[133]
• Succession to Māori Land: There are only a limited class of people that may succeed to Māori land, including children and members of the hapū associated with the land.^[134]
• Governance structures: There are five types of trusts that can be established over Māori land for the benefit of different classes of persons.^[135] These include ahu whenua trusts designed for the benefit of any persons with ownership interests, and whānau trusts designed for the benefit of the descendants of a named ancestor.  Alternatively, owners may choose to vest their interests in a Māori incorporation, an entity used to facilitate the economic and commercial use of the land on behalf of the owners.^[136]
• Dispute resolution: Part 3A of TTWMA establishes a dispute resolution mechanism to enable parties to resolve disputes in accordance with the law and relevant tikanga.^[137]
• Whāngai: Part 4 of TTWMA enables whāngai to succeed to Māori land. For a whāngai to succeed to interests in Māori land, there is a presumption that they must demonstrate a whakapapa connection to the land.^[138] To ascertain the relevant tikanga, evidence is derived from respected kaumātua and tohunga (Māori knowledge experts) who have knowledge of the relevant tikanga.^[139] The Commission acknowledges that although iwi and hapū will have different tikanga, the Court’s approach still reflects the significance of whakapapa to establishing Māori rights to land in general.^[140]
• Trusts: The Māori Land Court has exclusive jurisdiction to constitute trusts under TTWMA. General trust law also applies to the extent it is consistent with TTWMA.^[141] This gives rise to a complex engagement between tikanga and state law as general trust law only applies to such trusts to the extent that it is consistent with the scheme of TTWMA.^[142] The Māori Land Court in Pokere v Bodger discussed trustee duties under tikanga by considering the mana relationships and the whanaungatanga duties that arose in that particular context.^[143]

Claims for protected customary rights and customary marine title

The MACA addresses the common marine and coastal area and recognises customary interests within that area in two ways:  through customary marine title and through protected customary rights.^[144]

In order to obtain customary marine title or protected customary rights an applicant must establish that they hold a specified area or exercise a right in accordance with tikanga.^[145] Evidence of holding the area in accordance with tikanga will include detailed whakapapa and iwi histories, which the Commission acknowledges are tapu (sacred or opposite of profane).^[146] Issues relating to tikanga must therefore be engaged with when dealing with applications under MACA.

The Commission cautions that the High Court’s role in these circumstances is not to act “as the ‘final arbiter defining the whakapapa of the applicants’”.^[147] Rather, the High Court’s role is to weigh up the evidence to determine whether the statutory tests for marine customary title and protected customary rights are met.^[148]

Summary

This article has considered how tikanga has been incorporated into both statute and common law. In particular, it addresses how the common law has evolved from relying on rules of incorporation, towards enabling tikanga values to inform the common law or being considered as a separate source of law. Similarly, statute law has evolved from recognising that tikanga exists according to Māori customary law, to incorporating specific tikanga concepts which demand a greater depth of knowledge. Finally, it discusses how specific areas of state law interact with tikanga, noting that this varies greatly.

In our third and final article, considering part three of He Poutama, we will address the Commission’s recommendations for future engagement between tikanga and state law.

Ngā kupu āpiti - Notes

[1] Te Aka Matua o te Ture | Law Commission He Poutama (NZLC, SP24) at [5.6]-[5.7].

[2] At [5.8]-[5.9].

[3] At [5.8].

[4] At [5.10]; Native Rights Act 1865, s 3; and Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 79.

[5] At [5.11].

[6] At [5.12]-[5.13]; Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (NS) SC 72 at 79; and Mangakahia v New Zealand Timber Co (1884) 2 NZLR 345 (SC) at 350.

[7] At [5.13]. Other cases include: Re the Ninety Mile Beach [1963] NZLR 461 (CA); Waipapakura v Hempton (1914) 33 NZLR 1065 (SC) at 1071-1072; Hohepa Wi Neera v Bishop of Wellington (1902) 21 NZLR 655 (CA); Inspector of Fisheries v Ihaia Weepu [1956] NZLR 920 (HC).

[8] At [5.14]; and R v Symonds (1847) NZPCC 387 at 390 per Chapman J, in a passage later expressly adopted by the Privy Council in a judgment delivered by Lord Davey: Nireaha Tamaki v Baker (1901) NZPCC 371 at 384.

[9] At [5.15]; and Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA) at 345 per Stout CJ, at 349-350 per Edwards J, 351 per Williams J and 356 per Chapman J.

[10] At [5.16]; “See Re the Bed of the Wanganui River [1955] NZLR 419 (CA) at 461 per North J who observed that, prior to the Treaty of Waitangi, the bed of the river would have been tribal property. In the same case at 427-433, Cooke J found the following factors influential in determining that the claimants held the bed of the Wanganui river under their customs and usages as at 1840: the river was in the boundaries of the Wanganui iwi; the river was an integral part of the community life of the iwi; fishing weirs were attached to the bed of the river; and the evidence illustrated that the river was a highway for the iwi.” at footnote 26 of He Poutama.

[11] At [5.16]; “In Re the Ninety Mile Beach [1963] NZLR 461 (CA) at 467, [the Court] affirmed that the foreshore of the Ninety Mile Beach had, immediately before the Treaty, been part of the territory in respect of which the two appellant iwi exercised exclusive dominion and control and therefore were deemed to own and occupy those lands.” at footnote 26 of He Poutama.

[12] At [5.17]; Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [32]-[33] and [49]; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [8], [154]-[155], [168]-[172], [177], [237], [296]-[297] and [332].

[13] At [5.20]; and Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277 at [18].

[14] At [5.24]; and Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [168] and [171] per France and William Young JJ.

[15] At [5.26].

[16] At [5.27].

[17] Public Trustee v Loasby (1908) 27 NZLR 801 (SC) at 806.

[18] At [5.32]; Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 215.

[19] At [5.32]; see Proprietors of Parininihi Ki Waitotara Block v Ngaruahine Iwi Authority [2004] 2 NZLR 201 (HC) and R v Iti [2007] NZCA 119, [2008] 1 NZLR 587.

[20] At [5.33]-[5.34]; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [113].

[21] At [5.36].

[22] At [5.39]; Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; Courts of specialist jurisdiction such as Te Kooti Whenua Māori | Māori Land Court and Te Kōti Taiao | Environment Court have operated within legislative frameworks that facilitate the incorporation of tikanga into their operation and decisions since the early 1990s. Although significant, those jurisdictions exist within their relevant legislative frameworks, while Takamore was decided in the context of the common law.

[23] At [5.38] and [5.40].

[24] At [5.42].

[25] At [5.45].

[26] At [5.46]; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [108]-[110] per Glazebrook J, [171]-[174] per Winkelmann CJ, [257]-[259] per Williams J and [279] per O’Regan and Arnold JJ; and at [98]-[102] per Glazebrook J, [175]-[176] per Winkelmann  CJ, [257] per Williams J and [280] per O’Regan and Arnold JJ.

[27] At [5.53].

[28] Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [355].

[29] Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [570].

[30] At [5.55]-[5.57]; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58]; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [22] and at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J; and Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [74]-[81].

[31] At [5.60].

[32] At [6.2].

[33] At [6.9].

[34] At [6.10]-[6.11].

[35] At [6.13].

[36] At [6.14]; Fisheries Act 1877, s 8.

[37] The preamble of this Act referred to “an intention to gradually introduce English laws and customs”.

[38] At [6.17]-[6.18].

[39] At [6.19].

[40] At [6.20].

[41] At [6.24]-[6.26].

[42] At [6.27].

[43] Adoption Act 1955, s 19.

[44] At [6.28].

[45] At [6.30].

[46] At [6.34]-[6.35]; and Joseph Williams “Lex Aotearoa: an heroic attempt to map the Māori dimension in modern New Zealand law” (2013) 21 Taumauri | Waikato Law Review 1 at 10.

[47] At [6.36]-[6.37].

[48] At [6.38].

[49] At [6.40].

[50] At [6.42]-[6.43]. For example, Tai Ahu has argued that definitions of kupu Māori within legislation need to be removed and the Interpretation Act 1999 amended to require kupu Māori to be interpreted according to tikanga. See Tai Ahu “Te reo Māori as a language of New Zealand law: the attainment of civic status” (LLM Dissertation, Te Herenga Waka | Victoria University of Wellington, 2012) at 94.

[51] At [6.44].

[52] At [6.45]-[6.46].

[53] At [6.49].

[54] At [6.50].

[55] At [6.51].

[56] At [6.55].

[57] Section 187.

[58] Section 26(2)(a).

[59] At [6.56]-[6.58].

[60] At [6.59].

[61] At [6.61].

[62] At [6.63]; see for example Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 7; Ngāti Tūwharetoa Claims Settlement Act 2018, s 12; and Ngāti Rangi Claims Settlement Act 2019, s 12.

[63] At [6.65]; Te Urewera Act 2014, s 11; and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14.

[64] At [7.1].

[65] At [7.3].

[66] At [7.4] and Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [64].

[67] Resource Management Act 1991, s 8.

[68] Sections 6(e) and (g).

[69] Sections 33, 36B and 269(3).

[70] Section 58M.

[71] At [7.8] and Haddon v Auckland Regional Council [1994] NZRMA 49 (PT) at 63.

[72] At [7.10] and Beadle v Minister of Corrections NZEnvC Wellington A074/02, 8 April 2002 at [440].

[73] At [7.10] and Friends and Community of Ngawha Inc v Minister of Corrections [2002] NZRMA 401 (HC) at [41].

[74] At [7.17-7.20], Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [17], [320] and [339]

[75] At [7.22]-[7.23].

[76] At [7.29].

[77] At [7.29]; See Joan Metge In and Out of Touch: Whakamaa in Cross-Cultural Context (Victoria University Press, Wellington, 1986) at 77 and Henare v R [2020] NZCA 188 at [26].

[78] At [7.29] and Henare v R [2020] NZSC 96 at [13].

[79] At [7.32]-[7.40]. The Matariki Court is based in Kaikohe, Northland. A person can enter the Matariki Court if they have pleaded guilty to an offence. Before the Court imposes a sentence on that person, the Court will allow the offender to participate in a culturally appropriate rehabilitation programme. The offender’s iwi, hapū and whānau may be involved in developing the programme. The successful completion of the programme will be taken into account at sentencing. See: District Courts “Specialist Criminal Courts” <Specialist Criminal Courts | The District Court of New Zealand (districtcourts.govt.nz)>.

[80] At [7.35].

[81] At [7.38] and Pita Sharples “Te Whānau Āwhina: an indigenous programme for restorative justice by the Māori of New Zealand” (Inaugural Conference of Restorative Practices International, Queensland, Australia, 17 October 2007).

[82] At [7.40] and Te Kōti-ā-Rohe o Aotearoa | District Court of New Zealand “Transformative Te Ao Mārama model announced for District Court” (11 November 2020) <www.districtcourts.govt.nz>.

[83] At [7.24].

[84] At [7.25.]; and R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at [47]-[48].

[85] At [7.25]; and Mason v R [2013] NZCA 310, (2013) 26 CRNZ 464 at [3] and [41].

[86] At [7.44]; and The Maori Perspective Advisory Committee Puao-te-Ata-tu (day break): The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (September 1988).

[87] At [7.46]-[7.54]; formerly the Children, Young Persons, and their Families Act 1989.

[88] At [7.57].

[89] At [7.56].

[90] At [7.61].

[91] At [7.61]; and BP v Director-General of Social Welfare [1997] NZFLR 642 (HC) at 646-648.

[92] Te Aka Matua o Te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at 159.

[93] The Commission refers to ‘the Treaty’ which it defines as “te Tiriti o Waitangi | the Treaty of Waitangi” at [5.10].

[94] At [7.78]; and Te Heuheu Tūkino v Aotea District Māori Land Board [1941] NZLR 590 (PC).

[95] See generally Philip A Joseph (ed) “Judicial Review: General Principles” in The Laws of New Zealand Administrative Law (online looseleaf ed, Lexis Advance) at [2.23].

[96] At [7.79]; and Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 224.

[97] At [7.80]; and New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 668.

[98] At [7.81]; and Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 (CA) at 135.

[99] At [7.82]; and Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [587].

[100] At [7.85]; Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 59(2)(a); see Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [8] and [154]-[155] per William Young and France JJ, [237] per Glazebrook J, [296]-[297] per Williams J and [332] per Winkelmann CJ.

[101] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [159]-[161] per William Young and Ellen France JJ.

[102] At [7.86]; and Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942, [2022] 2 NZLR 148 at [134].

[103] Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942, [2022] 2 NZLR 148 at [107]-[113].

[104] At [7.87]; and Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [76].

[105] At [7.88]; and Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27 at [78].

[106] At [7.89]; and Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.

[107] At [7.89]; and Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [46].

[108] The original declarations sought by Ngāti Whātua Ōrākei are set out in the Supreme Court decision at [29], noting that the Supreme Court at [67] reinstated the claim except for paragraphs (e) and (f) of the declaratory relief sought.

[109] At [7.89]-[7.91]; and Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [603] and [623].

[110] At [7.92].

[111] At [7.95].

[112] At [7.95]-[7.97]; and Bullock v Dept of Corrections (2008) 5 NZELR 379 (HRRT) at [90].

[113] At [7.100].

[114] At [7.101]; and Ministry for Primary Industries v Te Hira Charlie Ned Whati [2020] NZDC 19801, [2020] DCR 287 at [40].

[115] At [7.100]; see generally Fleur Te Aho “Māori and the Bill of Rights Act: a case of missed opportunities?” (2013) 11 New Zealand Journal of Public and International Law 183 at 193.

[116] At [7.105] and [7.109].

[117] At [7.113] and Evidence Act 2006, ss 4 and 17.

[118] At [7.114].

[119] At [7.115] and Evidence Act 2006, ss 23 and 25.

[120] At [7.116]; see for example Ministry of Agriculture and Fisheries v Hakaria and Scott [1989] DCR 289 at 294.

[121] At [7.118].

[122] At [7.118]; and Hirini Moko Mead and Pou Temara Statement of tikanga, 31 January 2020, in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

[123] At [7.121]-[7.122]; and Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [95]; Ngāti Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at [36]; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [47]; and Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [3.43]-[3.44].

[124] Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at fn 151.

[125] At [7.123]; as demonstrated in cases such as Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [2]; Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [48]; Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 at fn 78; and Urlich v Attorney-General [2022] NZCA 38, [2022] 2 NZLR 599 at [37] and [39].

[126] At [7.124].

[127] Proprietors of Wakatū Inc v Attorney-General HC Nelson CIV-2010-442-181, 7 December 2010 at [45], set out in Proprietors of Wakatū Inc v Attorney-General [2012] NZHC 1461 at [41]-[42].

[128] At [7.126].

[129] At [7.126].

[130] At [7.126].

[131] At [7.135].

[132] At [7.138]-[7.139].

[133] At [7.140].

[134] At [7.141].

[135] At [7.142]-[7.144].

[136] At [7.143].

[137] At [7.145].

[138] At [7.150]; see for example Retemeyer v Loloa — Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129 TTK 288) at [49].

[139] At [7.148].

[140] At [7.151].

[141] At [7.152].

[142] At [7.153]-[7.154]: see for example Kusabs v Staite [2019] NZCA 420, [2023] 2 NZLR 144 at [124], in which the Court held that if fiduciary duties were applied to Māori land administration without due regard to whanaungatanga, the expression of whanaungatanga may be frustrated. In that case, there was found to be no conflict of interest where a rangatira for two hapū acted as a trustee on the respective hapū trusts.

[143] At [7.157]; and Pokere v Bodger — Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [116].

[144] At [7.163]-[7.165].

[145] At [7.170].

[146] At [7.171].

[147] At [7.171]; and Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [301].

[148] At [7.171]; and Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 at [301].

Author: Rhianna Morar

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