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 third article. Go here for the first article and here for the second article.

By members of Te Paewhiti Ture, Bell Gully: Rachael Brown, Dr Laura Hardcastle, Rhianna Morar (Ngāti Porou, Tapuika, Gujarat) and Nikorima Nuttall (Raukawa ki Te Kaokaoroa o Pātetere)

Download He Poutama (5.56 MB)

Hei tīmatanga - Introduction

In the third and final article, we consider Part Three of He Poutama addressing the Commission’s recommendations for future engagement between tikanga and state law. In summarising Part Three, we:

1. consider the principles for the common law’s engagement with tikanga and provide an overview of the three categories of claims identified by the Commission as engaging with both tikanga and the common law;
2. discuss the Commission’s views on how the courts may better engage with tikanga, including through the use of expert evidence on tikanga; and
3. address the Commission’s recommendations for how the public service engages with tikanga, and, in particular, the additional guidance that it considers may assist public agencies with how to address tikanga as part of the policy and legislative process.

Kōrerorero - Discussion

The Commission opens its substantive discussion in Part Three by identifying the risks of incorporating tikanga into state law. One of the risks the Commission identifies is that the courts may attempt to develop tikanga, as opposed to allowing such development to occur through tikanga institutions.^[1]  In addition, incorporating tikanga into state law risks tikanga being “misunderstood, misapplied and assimilated”.^[2] Part Three of He Poutama therefore focuses on the Commission’s recommendations for how state law, specifically the courts and the public sector, might engage appropriately with tikanga within the existing constitutional arrangements of Aotearoa New Zealand.^[3]

Principles for common law engagement (Chapter 8 of He Poutama)

Chapter 8 provides an overview of the common law method and its engagement with tikanga. In the first section of this chapter, the Commission outlines its views on how the common law method can be used to develop the law in relation to tikanga.^[4] The Commission then identifies three categories of tikanga claims that the courts may be asked to consider, which may require an inquiry into what the relevant tikanga is.^[5] The final section of this chapter discusses strategies for engaging with tikanga in the common law.^[6]

The common law method and its engagement with tikanga

The Commission first addresses the compatibility of tikanga with the common law method.^[7]

Overall, the Commission considers that the common law is capable of operating alongside tikanga and engaging with it in appropriate contexts.^[8] In reaching this conclusion, it considers a range of reasons, these are shown in diagrammatic form below:^[9]

Figure 1: Reasons to consider that tikanga and common law can engage effectively

Tikanga

A series of interconnected norms which assist in identifying the correct approach in te ao Māori.  Developed by tikanga institutions.  While the Commission acknowledges that tikanga is “more sensitive to context” than the common law, that does not mean that tikanga itself is indeterminate or uncertain.

The common law method

Principles of substantive law develop incrementally out of judicial precedent based on facts of specific cases.  Capacity for law-making is limited by the “guardrails” of the common law, including the separation of powers, parliamentary supremacy and te Tiriti o Waitangi | Treaty of Waitangi.

That said, the Commission’s view is that a cautious approach should be taken to the common law’s engagement with tikanga due to the potential risks to the integrity of tikanga as noted above.^[10]

The current law on engagement with tikanga

In commencing its discussion of the current law, the Commission notes commentary suggesting that there remains a lack of clarity as to when and how tikanga becomes part of the common law and how the existing body of case law relating to tikanga is being applied.^[11] To address this, the Commission identifies general principles for engaging with tikanga as well as the three categories of tikanga claims observed in case law.^[12]

General principles for engaging with tikanga

In Chapter 5 (discussed in our second article), the Commission discusses key cases relating to the interaction between state law and tikanga. In Chapter 8, the Commission identifies the general principles for engaging with tikanga in a common law context that can be derived from those cases. These are: ^[13]

• Tikanga was the first law of Aotearoa New Zealand and continues to shape and regulate the lives of Māori.^[14] It has been, and will continue to be, recognised in the development of the common law of Aotearoa New Zealand, where it is relevant, and its relevance will vary depending on the particular case.^[15]
• The common law requires reference to tikanga, along with other cultural, spiritual and religious values, relevant to the particular case.^[16] If tikanga values form part of a person’s heritage, then the common law may require consideration of the relevant tikanga in that case.^[17] On the other hand, the potential relevance of tikanga to the common law may also be considered in cases where the person concerned was not Māori.^[18]
• The courts have cautioned that tikanga “must not only be viewed through a Pākehā lens”,^[19] nor is it appropriate to “attempt to shoe-horn customary rights and interests into an English property law framework”.^[20] Rather, tikanga should be defined by reference to it being a complete system in which core concepts exist as part of an interconnected matrix.^[21]
• Consistent with this, the Supreme Court in Ellis v R (Continuance) said that “the courts must not exceed their function when engaging with tikanga”,^[22] and “care must be taken not to impair the operation of tikanga as a system of law and custom in its own right”.^[23]
• The extent to which tikanga should be considered will depend on its relevance to the particular case. For example, tikanga will not be considered in cases where it is not relevant or where consideration of tikanga is contrary to statute or binding precedent.^[24]
• If there is a difference in outcome between tikanga and the common law, the methodology for resolving any differences will need to be worked through on a case-by-case basis.^[25]
• When considering whether tikanga conflicts with existing common law and principles, the question is whether there is a conflict with underlying tikanga values/principles (rather than any particular observed tikanga practice).^[26] Furthermore, there is no presumption that the English common law will displace tikanga as the common law applies only in so far as it is applicable to the circumstances of Aotearoa New Zealand (which includes tikanga Māori).^[27]

Three categories of tikanga claims

The Commission then identifies three categories of claims which demonstrate the intersection of common law and tikanga, namely:^[28]

• claims based on tikanga as custom, being those which seek to convert a tikanga-based custom or practice into a legally enforceable common law right or interest;^[29]
• claims based on tikanga values, being those which argue that one or more tikanga values should be considered by the courts in determining the outcome of a particular case (and therefore should also influence the development of the common law itself);^[30] and
• claims based on tikanga as law, being those which ask the court to make declarations or determinations about tikanga itself, as the determinative and operative law within Māori society.^[31]

Claims based on tikanga as custom

As discussed in our second article, the Commission identifies two key lines of cases involving claims based on tikanga as custom: those involving customary property rights and those involving general custom.^[32] In the former category of cases, the modern approach recognises that customary proprietary rights are enforceable in the ordinary courts unless expressly extinguished by statute.^[33] As such, the requirements for proof of customary property claims are largely governed by statute, including the Te Ture Whenua Māori Act 1993 (TTWMA) and the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).^[34] Conversely, in the latter category of cases, the requirements for proof of ‘general custom’ set out in Public Trustee v Loasby^[35] no longer apply following the Supreme Court decision in Ellis v R (Continuance), although the relevant tikanga may nevertheless need to be established and ascertained by evidence or through another suitable process.^[36] A more detailed discussion of these examples is provided in our second article which considers Chapters 5, 6 and 7 of He Poutama.

Claims based on tikanga values

Claims based on tikanga values argue that tikanga values should be taken into account in determining the outcome of a particular case. The Supreme Court decisions in Takamore v Clarke and Ellis v R (Continuance) involved claims based on tikanga values. However, as the Commission notes, tikanga was not determinative of the outcome in either of those cases.^[37] In Takamore v Clarke, Tipping, McGrath and Blanchard JJ held that Ms Clarke, as the executor, had the power to determine where Mr Takamore’s body was to be buried and that tikanga was a relevant consideration in that decision.^[38] In Ellis v R (Continuance), Glazebrook, O’Regan and William Young JJ held that Mr Ellis’ appeal could continue after death and that tikanga was a relevant consideration in deciding whether it was in the interests of justice to allow the appeal to continue, but that tikanga did not require a modification of the test for continuance.^[39]

The Commission goes on to note that the minority in Ellis (Winkelmann CJ and Williams J) recognised tikanga considerations as part of the substantive test for continuance, preferring a framework that includes tikanga considerations in deciding whether it was in the interests of justice for the appeal to continue.^[40] This, the Commission says, is consistent with statements in other cases that, to the extent that tikanga gives rise to recognisable interests, there is no presumption against tikanga in favour of English common law values, as the common law applies only in so far as it is applicable to the circumstances of Aotearoa New Zealand.^[41] Rather, tikanga is an “ingredient” and the weight given to tikanga values will vary on a case-by-case basis. In some cases, tikanga values will be of such relevance that they may be determinative.^[42]

Claims based on tikanga as law

The third category of tikanga-based claims are those that seek declarations or determinations from the courts about tikanga itself. An example of this is the declaratory relief sought by Ngāti Whātua Ōrākei in the High Court decision of Palmer J.^[43] The declarations proposed by Palmer J include references to the concepts of ahi kā and mana whenua, as they are understood in accordance with the tikanga and historical tribal narrative and tradition of the particular iwi involved in that case.^[44] The Commission considers that, in this category of cases, tikanga recognition does not have the direct effect of displacing or superseding the common law or statute,^[45] nor is tikanga directly binding on the Crown.^[46]

Against this backdrop, the Commission proposes a framework for engagement with tikanga that is designed to respond to concerns about the uncertainty of developments relating to tikanga, with a view to providing “natural boundaries for the application of tikanga” in the courts.^[47]

Strategies for engagement with tikanga

The final part of Chapter 8 addresses the Commission’s recommendations for how the courts might engage with tikanga. ^[48] The Commission proposes the following three strategies for engaging with tikanga:

• applying a tikanga lens, by which it means applying the tikanga framework proposed in Part One of He Poutama.^[49] Key to this strategy is that any process of engagement should commence from within te ao Māori.^[50]
• identifying judicial tools for engagement, including the use of pūkenga to assist with disputes about the meaning and effect of tikanga within te ao Māori,^[51] as well as the ability to refer questions of tikanga to the Māori Appellate Court under TTWMA,^[52] and the use of case management tools to characterise the tikanga dispute and identify other options for engagement that might assist the parties and the court to resolve the dispute.^[53]
• processes for tikanga-based dispute resolution, including the creation of a specialist tikanga panel in the High Court,^[54] appointment of pūkenga as commissioners of the High Court,^[55] expanding the jurisdiction of the Māori Land Court,^[56] and the use of arbitration as a dispute resolution process in which tikanga is able to operate as the governing law.^[57]

Applying a tikanga lens

While earlier chapters of He Poutama sought to develop a framework for engaging with tikanga from the ground up, in Chapter 8, the Commission takes a different approach and considers how tikanga may operate in a legal context through the medium of existing cases. The table below sets out the cases the Commission identifies as having applied a tikanga lens.^[58]

Identifying judicial tools for engagement

The Commission then discusses the tools available to assist judges engaging with tikanga.^[79] It proposes that manaakitanga (in this context, an obligation to take care of and uphold the mana of tikanga) should be the guiding principle for judicial engagement with tikanga.^[80] In that respect, the Commission emphasises the following tools:

• The use of pūkenga: Pūkenga can be appointed: as additional members that sit on the court for particular hearings;^[81] or as counsel,^[82] or experts^[83] to assist the court by providing evidence, either by way of an agreed statement of tikanga,^[84] or as expert evidence.^[85]  The Commission notes that decisions on the role of pūkenga require consideration of how tikanga should be brought into the court^[86] and, once tikanga is before the court, how the court might benefit from further assistance in determining the dispute as it relates to tikanga.^[87] In the Commission’s view, pūkenga will be of most assistance in cases involving complex, nuanced and novel issues of tikanga, where the need for caution is paramount.^[88]
• Referring questions of tikanga to the Māori Appellate Court: Section 61 of TTWMA provides that the High Court may state a case on “any question of tikanga Māori” and refer it to the Māori Appellate Court. The Māori Appellate Court’s decision is then binding on the High Court.^[89] The Commission considers that use of this procedure would be most appropriate in cases involving: ^[90]
  • conflicting expert evidence on tikanga;
  • a novel tikanga issue coupled with a corresponding lack of available guidance for the court; or
  • issues relating to tikanga which have the potential to affect future litigants and where there is a concern that submissions received from the parties on the tikanga issues will be incomplete for one reason or another.
• The exploration of different case management tools: The Commission notes that the current rules governing the High Court and the District Court do not require parties to identify appropriate tools for engagement with tikanga.^[91] It suggests that parties could be directed to categorise their tikanga dispute, and consider what tools might be appropriate to assist the parties and the court to engage with the relevant tikanga, prior to the first case management conference.^[92]

Enhancing processes for tikanga dispute resolution

Building on the previous sections, the Commission considers how the common law can engage with tikanga as part of dispute resolution processes.^[93] It explores the following four dispute resolution options for addressing issues of tikanga:

• The creation of a specialist tikanga panel in the High Court: Section 19 of the Senior Courts Act 2016 allows the Chief High Court Judge, in consultation with the Attorney-General and the Chief Justice, to establish other panels of High Court Judges.^[94] The Commission proposes that a panel designed to hear tikanga cases could be established under that section and operate in a similar way to other panels.^[95]
• The appointment of pūkenga as commissioners of the High Court: There is no provision to appoint pūkenga in the role of a commissioner assisting the High Court.^[96] However, the Commission observes that such powers exist to appoint lay commissioners in the Environment Court,^[97] and the High Court for certain proceedings under the Commerce Act.^[98] In light of this, the Commission proposes that a similar provision could be enacted for appointing pūkenga as commissioners to assist the court in respect of tikanga disputes.^[99]
• Expanding the jurisdiction of the Māori Land Court: The Commission has previously recommended expanding the jurisdiction of the Māori Land Court to include all disputes involving communal Māori assets.^[100] In the Commission’s view, that recommendation was underscored by the view that the Māori Land Court was the most appropriate body to resolve disputes if the parties themselves were unable to resolve the dispute through their own resolution processes.^[101] In light of this, it proposes expanding the jurisdiction of the Māori Land Court to include all claims involving tikanga as custom and tikanga as law, excluding the non-tikanga elements of a claim.^[102]
• The use of arbitration: One of the key aspects of arbitration the Commission discusses is the ability for tikanga to be the law that governs an arbitral dispute.^[103] Other aspects of arbitration include the flexibility of the procedure to be followed,^[104] the ability to adapt the rules of evidence,^[105] and the parties ability to appoint their own arbitrator.^[106] In the Commission’s view, resolving disputes by way of arbitration allows the parties to develop a tikanga consistent procedure that results in a binding determination at law. ^[107]

The Commission concludes Chapter 8 by noting that “[t]he common law is in a state of transition in relation to tikanga”^[108] and that its identification of the three tikanga claims and proposed strategies for engagement will assist courts in developing the appropriate mechanisms for engaging with tikanga.^[109]

Tikanga proficiency in the Public Sector (Chapter 9)

Chapter 9 addresses the Commission’s recommendations for how the public service engages with tikanga, including specific guidance that may assist public agencies with how to address tikanga as part of the policy and legislative process. The Commission proposes the following four ways of working towards greater public sector engagement with tikanga:^[110]

• building capability and capacity, noting the work that is already underway in this regard;
• developing procedural and policy guidance to ensure that public agencies can properly address tikanga during policy and legislative processes (through the Legal Design Advisory Committee (LDAC) Guidelines and the processes for developing Cabinet papers);
• potentially, providing greater institutional support, specifically via external expert advisory processes; and
• improving processes for considering kupu Māori in legislation.

Building capability and capacity to engage with tikanga

The Commission notes that the Public Service Act 2020 places responsibilities on public service chief executives to take steps to address organisational capability, while supporting the relationship between Māori and the Crown under the Treaty.^[111]

A key initiative aimed at giving effect to the above responsibilities is the cross-agency work programme, Whāinga Amorangi, established by Te Arawhiti – the Office for Māori-Crown Relations.^[112] According to the Commission, the programme aims to support public service chief executives to meet their statutory responsibility of supporting the Crown in its relationships with Māori, as well as to work towards cultural change.^[113] Part of this programme includes developing organisational and individual capability-building plans, and then submitting these plans to Te Arawhiti for review.^[114] In addition, in 2022 Te Arawhiti developed a Māori-Crown relations capability framework which identifies the key priorities relating to capacity and capability-building within the public service, including ensuring that the public service is responsive to Māori and supporting public servants to engage with Māori.^[115]

However, the Commission identifies several shortcomings with these initiatives, including that the public service’s capability to engage with tikanga is not being prioritised in the short-term^[116] and the lack of clarity regarding how public service agencies might reach out to persons with the relevant tikanga expertise outside of Māori public servants employed by those agencies (whose ability and desire to advise on tikanga matters will inevitably vary).^[117]

Developing procedural guidance to address tikanga in the legislative and policy processes

The Commission notes that those working on public policy/law reform face challenges due to the lack of clear guidance on how to develop processes and policies that recognise the relevance of tikanga and integrate tikanga considerations into policy and legislative development where appropriate.^[118] To address this, the Commission discusses the opportunities it sees for improving guidance on when and how public agencies should consider tikanga.^[119]

LDAC Guidelines

The LDAC is a committee established to improve the quality of legislation and is mostly comprised of senior government legal advisors and officials.^[120] One of its main functions is to “provide advice to agencies in the initial stages of developing legislation, when legislative proposals and drafting instructions are being prepared”.^[121] In addition to this, the LDAC can scrutinise aspects of Bills that raise matters of particular public law concern.^[122] The Commission notes that the LDAC Guidelines currently refer to tikanga in two ways:

• The LDAC Guidelines recommend that public agencies should identify the “[r]elevant common law rules and principles and tikanga (which may require appropriate consideration of Māori language, customs, beliefs and the importance of community, whānau, hapū and iwi)” when considering how proposed legislation relates to the existing law.^[123]
• The Guidelines also recommend that public agencies consider whether “the legislation potentially affect[s] rights and interests recognised at common law or practices governed by tikanga?”^[124] This section goes on to say that “[e]xpress language (or at least clear and plain implication) is required to extinguish any subsisting Māori customary title or customary rights”.^[125]

Ultimately, the Commission concludes that there is merit in further developing references to tikanga in the LDAC Guidelines.^[126] In addition to this, it makes several other recommendations about the LDAC as set out below:

• Appointment of non-public service members to the LDAC: The LDAC processes allow for non-public service members to sit on LDAC subcommittees considering a Bill and the Commission states that this is one way in which advice on tikanga might be obtained on individual Bills where it is needed.^[127]
• Extending confidentiality protocols to enable consultation with pūkenga: The LDAC has a standing dispensation from Cabinet to share otherwise confidential material with outside contributors. The Commission notes that applying the confidentiality protocols may enable consultation with pūkenga on matters not in the public domain.^[128]
• Changing the composition of the LDAC with members with tikanga expertise: The LDAC has recently established a Māori-Crown relations subcommittee to consider ways forward. In light of this, the Commission says that further thought could be given to the membership of the LDAC in terms of increasing Māori membership and appointing members with tikanga expertise to the LDAC.^[129]

Guidance supporting the development of Cabinet papers

The key guidance supporting the development of Cabinet papers in respect of tikanga is the Cabinet Office Circular on “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (Cabinet Office Treaty circular).^[130] The Commission recommends that the development of a separate circular on tikanga Māori could be explored as well as including a reference to tikanga in the Cabinet paper template and Regulatory Impact Statements (RIS) to prompt consideration of issues relating to tikanga as part of the policy development process.^[131]

At present, the Cabinet Office Treaty circular sets out the “guidelines agreed by Cabinet for policy-makers to consider the Treaty of Waitangi in policy development and implementation”.^[132] One of the questions included in the Cabinet Office circular to guide policy-makers is “[h]ow does the proposal demonstrate that policy-makers have looked at the proposal from the perspective of legal values such as natural justice, due process, fairness and equity?”.^[133] On that, the Circular notes that specific tikanga values (such as mana and whakapapa) could “offer perspective” on a particular issue.^[134] The Circular acknowledges that the precise impact of tikanga on state law will vary.^[135]

The Commission makes the following recommendations to assist policy-makers with considering tikanga when developing Cabinet papers:

• A tikanga-focused Cabinet Office circular: The Commission considers that it would be appropriate for a further tikanga-focused Cabinet Office circular to be developed given the developments relating to tikanga and state law.^[136] These issues were discussed in our first and second articles. That circular could include questions to prompt policy-makers to consider the relevance of tikanga to the particular issue, and the processes (if any) that have been undertaken to identify the relevant tikanga.^[137]
• Cabinet policy paper requirements: The Commission further recommends that the Cabinet paper template be amended to provide for a tikanga analysis.^[138]
• Regulatory Impact Statements (RIS): An RIS provides a more detailed analysis of the particular issue addressed in the Cabinet paper.^[139] The RIS template directs officials to “[o]utline the criteria [policy-makers] will use to evaluate options”.^[140] The Commission recommends that consistency with tikanga be included as a criterion for evaluating policy options.^[141]

Overall, the Commission considers that there is potential for a more “systematic” approach to be taken to considering tikanga during the legislation development process, and that this might be achieved through amending the existing policy and legislative guidance that is available to policy-makers.^[142]

External expert advisory processes

The Commission then goes on to consider the options for providing more centralised support to public agencies engaging with tikanga.^[143]  In particular, it discusses the roles of already established bodies (including the LDAC,^[144] Te Puni Kōkiri – the Ministry of Māori Development, Te Arawhiti,^[145] and the cross-agency officials’ Treaty provisions oversight group^[146]), before concluding that a new public body should be established to provide tikanga expertise to public agencies.^[147] It considers that there are two options for establishing such a body:

• a cross-agency officials’ group that is focused on tikanga;^[148] or
• a statutory board, based on the approach taken to establishing Te Mātāwai (the statutory board established by Te Ture mō te Reo Māori (Māori Language Act 2016)).^[149]

In the Commission’s view, it would be appropriate for this new public body to have a role in reviewing developing legislation (including in its policy development stages).^[150] It would also provide advice to public agencies on:^[151]

• the consistency of any legislative or policy proposal with tikanga concepts;
• the relevance of tikanga-based approaches to their policy design; and
• how to include appropriate references to tikanga in policy or legislation.

Ultimately, the Commission considers that “no existing body appears ideally suited to the task of providing agencies developing policies and legislation with tikanga-focused guidance and support”.^[152] To that end, it considers that each of the options it proposes would “have greater independent expert standing than existing options and would provide a more specialised focus on tikanga issues”.^[153]

Kupu Māori in legislation

The final part of Chapter 9 addresses the use of kupu Māori in legislation and the drafting issues that arise from their codification in statute. The Commission, referring to Tai Ahu’s dissertation on Te Reo Māori as a language of New Zealand law,^[154] notes that the use of kupu Māori in legislation is one step towards “the use of Māori as a language of substantive law”, and as “the language used in any kind of legal instrument to produce a legal outcome or create a legal relationship”.^[155] As an example, the Commission refers to the Te Kāhui o Matariki Public Holiday Act 2022 which includes provisions that use reo Māori to communicate the mātauranga Māori (knowledge broadly shared by all Māori) related to Matariki (the rising constellation marking the Māori new year).^[156]

However, when it comes to tikanga, the key issue for the Commission is the extent to which legislative definition is required or proper for a tikanga concept.^[157] On that, Tai Ahu has argued that kupu Māori definitions that are given in English risk “ascribing inadequate and artificial meanings to Māori concepts”^[158] and that providing a “definition that is too descriptive is likely to inappropriately codify the content of the concept”.^[159] With this in mind, the Commission makes the following observations about incorporating kupu Māori into legislation:

• the use of kupu Māori in an otherwise English text should indicate that their meaning and interpretation should be give effect to in a Māori way, and that their use in legislation has the potential to produce tikanga-connected outcomes;^[160]
• the use of kupu Māori should be reserved for situations where a Māori meaning is intended;^[161] and
• policy intentions should aim to clarify the meaning and application of kupu Māori and tikanga concepts in legislation. For example, certain tikanga concepts, such as taonga and mana, may be understood differently depending on whether or not their meaning is considered from a te ao Māori perspective.^[162]

In light of this, the Commission suggests that the Legislation Act 2019 could be amended to either require or establish a presumption that kupu Māori are to be interpreted consistently with tikanga.^[163]

Te whakarāpopoto - summary

This article has considered the Commission’s recommendations for future engagement between tikanga and state law. In particular, it addresses the principles for engaging with tikanga in the common law and identifies the three claims relating to issues that engage both tikanga and the common law. Further to this, it outlines the Commission’s views on the existing judicial tools and dispute resolution processes available for the courts to better engage with tikanga. Finally, it discusses how the public service engages with tikanga, and outlines the Commission’s recommendations on the development of further policy guidance and processes to enable policy-makers to engage with tikanga considerations in the policy and legislative process.

In its concluding remarks in He Poutama, the Commission returns to the metaphor of a wharenui. In particular, it refers to the tukutuku panels of a wharenui as a way of visualising the interaction between tikanga and state law in accordance with the appropriate values and principles identified by the Commission to guide future engagement.^[164] However, the Commission acknowledges that the risk of tikanga developing in state institutions, and not tikanga institutions, remains and that there are different pathways that can be taken to engaging with tikanga within a state law context.^[165] To that end, the Commission refers to the concept of “te ihonui” introduced by Tā Pou Temara who identifies it as a liminal middle space in the wharenui.^[166] According to Tā Pou Temara, te ihonui begins with the pou tāhū at the front of the house and ends with the pou tūārongo at the rear of the house.^[167] It provides a space down the middle of the wharenui for engagement between the manuhiri and the tangata whenua.^[168] In the Commission’s view, given the risk referred to above, te ihonui therefore presents another way of viewing the interaction between tikanga and state law, where the sides of the wharenui can come together and interact with one another and seek a pathway forward.^[169]

Ngā kupu āpiti - Notes

[1] Te Aka Matua o te Ture | Law Commission He Poutama (NZLC, SP24) at [2].  Note that while the Commission does not express what it means by this, but we presume this refers to certain institutions within Māori society such as marae.

[2] At [2].

[3] At [3].

[4] At [8.2] and [8.6].

[5] At [8.3] and [8.42].

[6] At [8.4] and [8.5].

[7] At [8.23].

[8] At [8.31].

[9] At [8.17]-[8.30].

[10] At [8.32]-[8.36]. In particular, the Commission notes that some academics and commentators reject any engagement between tikanga and the common law within the current constitutional context, referring to the works of Māori academics Ani Mikaere, Moana Jackson and Annette Sykes. See generally Ani Mikaere “Cultural invasion continued: the ongoing colonisation of tikanga Māori” (2005) 8(2) Yearbook of New Zealand Jurisprudence 134; Moana Jackson “The Treaty and the word: the colonization of Māori philosophy” in Graham Oddie and Roy W Perrett (eds) Justice, Ethics and New Zealand Society (Oxford University Press, Auckland, 1992); Annette Sykes “The myth of tikanga in the Pākehā law” (2021) 8 Te Tai Haruru Journal of Māori and Indigenous Issues 7. Moreover, the Supreme Court in Ellis v R (Continuance) has said that the courts must take care not to exceed their function when considering tikanga: see Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [122]-[123] per Glazebrook J, [181] per Winkelmann CJ and [270]-[271] per Williams J. Another risk identified by the Commission is that there are certain areas where only the executive or the legislature will be able to weigh the considerations involved (including tikanga where relevant) at [8.35].

[11] At [8.38]. In particular, the Commission refers to Sarah Down and Professor Emeritus David V Williams who have observed that: “there remains a lack of clarity as to when and how tikanga is part of the common law and precisely how these historical precedents are being relied on” in Sarah Down and David V Williams “Building the foundations of tikanga jurisprudence” (2022) 29 Canterbury Law Review 27 at 37.

[12] At [8.38].

[13] These points are identified by the Commission at [8.39].

[14] At [8.39(b)]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.

[15] At [8.39(a)]; See 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.

[16] At [8.39(c)]; See Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [164] per Tipping, McGrath and Blanchard JJ.

[17] At [8.39(c)]; See Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [164] per Tipping, McGrath and Blanchard JJ.

[18] At [8.39(c)]; See for example Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; Public Trustee v Loasby (1908) 27 NZLR 801 (SC); Baldick v Jackson (1910) 30 NZLR 343.

[19] At [8.39(d)]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [297] per Williams J in agreement with the majority reasons given by William Young and Ellen France JJ at [155] and [161].

[20] At [8.39(d)]; See Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [33], as cited in Trans-Tasman Resources Ltd v Taranaki Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [169].

[21] At [8.39(d)]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [180] per Winkelmann CJ.

[22] At [8.39(e)]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [107] and [110] per Glazebrook J, [168], [169] and [172] per Winkelmann CJ and [272] per Williams J.

[23] At [8.39(e)]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [120] and [122] per Glazebrook J, [181] per Winkelmann CJ and [270]-[272] per Williams J.

[24] At [8.39(f)]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [117] per Glazebrook J and [265] per Williams J.

[25] At [8.39(g)]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [119] per Glazebrook J, [182] per Winkelmann CJ and [266] per Williams J.

[26] At [8.39(h)]; For example in Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733, Elias CJ said that the underlying tikanga values of whenua and whakapapa and their relevance to burial should be taken into account in New Zealand law and that the competing claims of whakapapa and cultural association present in that case did not make such values “unreasonable in law” at [96].

[27] At [8.39(h)]; See for example Attorney-General v Ngati Apa [2003] NZCA 117, [2003] 3 NZLR 643.

[28] At [8.40]-[8.41].

[29] At [8.43].

[30] At [8.49].

[31] At [8.56].

[32] At [8.43].

[33] At [8.46] and see Attorney-General v Ngati Apa [2003] NZCA 117, [2003] 3 NZLR 643 at [32]-[33] and [49].

[34] At [8.47].

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

[36] At [8.44]; See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 MZLR 239 at [113] and [123].

[37] At [8.50]-[8.55].

[38] Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [164] per Tipping, McGrath and Blanchard JJ.

[39] Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [142]-[145] per Glazebrook J and [315] per O’Regan and Arnold JJ.

[40] At [8.52]-[8.53]; Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [210]-[211] per Winkelmann CJ and [236] per Williams J.  See further at [212] per Winkelmann CJ and [238]-[244] per Williams J.

[41] At [8.39]; See for example Attorney-General v Ngati Apa [2003] NZCA 117, [2003] 3 NZLR 643.

[42] Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [267]-[269] per Williams J.

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

[44] Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [649(a)] and [649(b)].

[45] Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [117].

[46] At [8.57]; Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [570].

[47] At [8.63].

[48] The Commission acknowledges that these strategies were developed with the assistance of Professors Wiremu Doherty, Tā Hirini Moko Mead and Tā Pou Temara of Te Whare Wānanga o Awanuiārangi.

[49] At [8.70] and [8.73]-[8.74].

[50] At [8.73].

[51] At [8.109] and [8.111]-[8.117].

[52] At [8.109] and [8.118]-[8.123].

[53] At [8.109] and [8.124]-[8.125].

[54] At [8.126] and [8.127]-[8.131].

[55] At [8.126] and [8.132]-[8.134].

[56] At [8.126] and [8.135]-[8.142].

[57] At [8.126] and [8.143]-[8.149].

[58] At [8.83].

[59] At [8.84]; Pokere v Bodger – Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210). The decision was the first fully bilingual decision of the Māori Land Court.

[60] Pokere v Bodger – Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [11].

[61] Pokere v Bodger – Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) at [42] and [87].

[62] At [8.87]; Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942, [2022] NZHC 2942; Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319, [2022] 2 NZLR 178.

[63] Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319, [2022] 2 NZLR 178 at [99]-[100] and [108]-[109].

[64] At [8.87].

[65] Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319, [2022] 2 NZLR 178 at [109].

[66] At [8.88]; Taueki v McMillan – Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144).

[67] At [8.89]; Taueki v McMillan – Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [83]-[96], referring to the evidence of Tā Hirini Moko Mead.

[68] At [8.89]; Taueki v McMillan – Horowhenua 11 (Lake) (2014) 324 Aotea MB 144 (324 AOT 144) at [117]-[118].

[69] At [8.90] and [8.91]; In the matter of [S] [2021] NZFC 5911 at [30] and [36]. The Commission elected to anonymise the name of the defendant, referring to the subject person only as “S”. See footnote 167 of He Poutama.

[70] At [8.95]; Doney v Adlam [2023] NZHC 363, [2023] 2 NZLR 521.

[71] Doney v Adlam [2023] NZHC 363, [2023] 2 NZLR 521 at [106].

[72] Doney v Adlam [2023] NZHC 363, [2023] 2 NZLR 521 at [106].

[73] At [8.96]; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 73.

[74] At [8.96]; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 73 at [82]-[93].

[75] At [8.97]; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 73 at [192].

[76] At [8.99]; The Court reserved leave for parties to apply jointly to the Court to facilitate tikanga-consistent processes: Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [649(d)].

[77] At [8.101]; the Commission elected to anonymise the name of the defendant.  The case citation is [2019] NZDC 17641, a decision of Judge Greg Davis of the Matariki Court.

[78] [2019] NZDC 17641 at [77].

[79] At [8.105]-[8.110].

[80] At [8.109].

[81] At [8.111]; “For example, as provided for in Te Ture Whenua Maori Act 1993, s 62 which allows for “additional members with knowledge and experience in tikanga Maori” to sit on the Appellate Court for particular hearings.  At present, there is limited scope for the participation of pūkenga as additional members in this manner in hearings convened in the courts of general jurisdiction”.

[82] At [8.111]. For example, the Solicitor-General must appoint counsel to appear and be heard as counsel assisting where requested by the High Court or District Court: see Rule 10.22 of High Court Rules 2016 and Rule 10.27 of the District Court Rules 2014. The Commission notes that “[m]ore broadly, there is the option to appoint counsel to assist the Court or amicus curiae with submissions and guiding discussion about those clashes between tikanga and British common law. For example, the courts have engaged Te Hunga Roia Māori (the Māori Law Society) to undertake this role in Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239; Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5 [this judgment was not released at the time of publication].” See footnote 186 of He Poutama.

[83] At [8.111]; “High Court Rules 2016, r 9.36. Pursuant to existing practice, where the parties are unable to agree on an expert the Court decides the question of who is to be appointed from a list of suitable persons named by the parties, emphasising the independence and accountability of the court expert to the court. For the procedure in a situation of disagreement, see further Kilgour v Cotterill (1994) 7 PRNZ 423 (HC). Independent pūkenga tikanga were appointed in Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772”.

[84] See Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

[85] See for example Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601.

[86] At [8.113].

[87] At [8.114]-[8.117].

[88] At [8.116].

[89] At [8.118].

[90] At [8.122].

[91] At [8.124]; High Court Rules 2016, rr 7.3, 7.4 and sch 5; District Court Rules 2014, rr 7.2, 7.4 and sch 3.

[92] At [8.124]; The Commission notes that “[i]n practice, tikanga disputes may not be confined to only one of these categories.  In any such cases, a combination of approaches appropriate to each category may be needed to facilitate protection and engagement” see footnote 205 of He Poutama.

[93] At [8.126].

[94] At [8.128]-[8.129].

[95] At [8.127]-[8.131]; See Senior Courts (High Court Commercial Panel) Order 2017.

[96] At [8.133]. The Commission notes that the High Court Rules provide for court-appointed experts, citing the Commerce Act 1986, s 77. See also Human Rights Act 1993, s 126: on appeal from the Human Rights Review Tribunal, two HRRT members who are not judges sit with a High Court Judge in the High Court to determine the appeal.

[97] At [8.133] citing section 253 of the Resource Management Act 1991 which provides in this regard that, when considering whether a person is suitable to be appointed as an Environment Commissioner or Deputy Environment Commissioner of the Environment Court, regard shall be had to ensuring that the court possesses a mix of knowledge and experience including knowledge and experience in “matters relating to the Treaty of Waitangi and kaupapa Maori”.

[98] At [8.133] citing Commerce Act 1986, ss 77(10)-77(12); See generally section 9(2) of the Senior Courts Act 2016 which “anticipates that enactments may provide for the appointment of persons other than judges to sit with judges or as members of the court in specific proceedings”.

[99] At [8.132]-[8.134].

[100] At [8.139], referring to Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004). The Law Commission’s recommendations regarding the Māori Land Court were rejected by the government.

[101] At [8.139], citing Te Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004) at 239.

[102] At [8.141]-[8.142].

[103] At [8.144]; Arbitration Act 1996, sch 1 cl 28(1).

[104] At [8.144]; Arbitration Act 1996, sch 1 cls 20(2) and 22.

[105] At [8.144]; Arbitration Act 1996, sch 1 cl 19(1).

[106] At [8.144]; Arbitration Act 1996, sch 1 cl 11.

[107] At [8.143]-[8.149].

[108] At [8.150].

[109] At [8.8151]-[8.154].

[110] At [9.1].

[111] At [9.12].

[112] At [9.13]; Te Arawhiti | The Office for Māori Crown Relations “Whāinga Amorangi resource hub”.

[113] At [9.13].

[114] At [9.13]; Te Arawhiti | The Office for Māori Crown Relations Whāinga Amorangi: Transformational Leadership (undated) at 15.

[115] At [9.13]; Te Arawhiti | The Office for Māori Crown Relations Māori Crown relations capability framework for the public service (September 2022).

[116] At [9.16].

[117] At [9.17].

[118] At [9.22].

[119] At [9.25].

[120] At [9.47]-[9.48]; See Legislation Design and Advisory Committee <ldac.org.nz>; Cabinet Office Cabinet Manual 2023 at [7.40]-[7.44]; Legislation Design and Advisory Committee “Briefing to the incoming Attorney-General” (10 November 2017). Note that the Attorney-General has the discretion to appoint external legal practitioners, academics and regulators; see Legislation Design and Advisory Committee “Membership” <ldac.org.nz>; and Office of the Attorney-General “Adjustment of Legislation Design and Advisory Committee” (Cabinet Legislation Committee paper, 1 October 2018).

[121] At [9.47]; See the LDAC Terms of Reference in Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 4.

[122] At [9.47]; See the LDAC Terms of Reference in Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 4.

[123] At [9.27]; Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 3.4.

[124] At [9.28]; Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 5.3.

[125] At [9.28]; Legislation Design and Advisory Committee Legislation Guidelines: 2021 Edition (September 2021) at 5.3.

[126] At [9.29].

[127] At [9.49]; Legislation Design and Advisory Committee “LDAC operating model” (24 April 2020) <ldac.org.nz>.

[128] At [9.49]; See Office of the Attorney-General “Adjustment of Legislation Design and Advisory Committee” (Cabinet Legislation Committee paper, 1 October 2018) at [6.2]-[6.3]; Cabinet Legislation Committee Minute “Adjustment of Legislation Design and Advisory Committee” (1 October 2018) LEG-18-MIN-0127 at [7]-[8]; Office of the Attorney-General “Remodelling the Legislation Advisory Committee” (Cabinet Legislation Committee paper, 5 March 2015) LEG (15) 7 at [29].

[129] At [9.50].

[130] At [9.30]; Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5.

[131] At [9.30].

[132] At [9.31]-[9.32]; Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [1].

[133] At [9.31]-[9.32]; Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [66].

[134] At [9.31]-[9.32]; Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [75].  The other values listed are whanaungatanga and manaakitanga.

[135] At [9.31]-[9.32]; Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi guidance” (22 October 2019) CO (19) 5 at [76].

[136] At [9.33].

[137] At [9.34].

[138] At [9.38]-[9.39].  For completeness, we note that, since He Poutama was published, the Cabinet policy paper template has been updated. This template provides that the Cabinet Office Treaty circular should be taken into account in the analysis section.  See Cabinet Office “Cabinet policy paper template” (28 February 2020, updated November 2023) at [11].

[139] At [9.40]; Cabinet Office Circular “Impact analysis requirements” (26 June 2020) CO (20) 2; Te Tai Ōhanga | The Treasury Guide to Cabinet’s Impact Analysis Requirements (June 2020).

[140] At [9.40]; Te Tai Ōhanga | The Treasury “Regulatory Impact Statement template” (July 2021) <treasury.govt.nz> at 7: deciding upon an option to address the policy problem.

[141] At [9.41].

[142] At [9.42]-[9.43].

[143] At [9.44].

[144] At [9.47]-[9.50].

[145] At [9.51]-[9.53].

[146] At [9.54]-[9.56].

[147] At [9.58]-[9.61].

[148] At [9.66]-[9.69].

[149] At [9.70]-[9.73].

[150] At [9.64].

[151] At [9.63].

[152] At [9.58].

[153] At [9.61].

[154] 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).

[155] At [9.74].

[156] At [9.85]-[9.91].

[157] At [9.76].

[158] At [9.76].

[159] At [9.76].

[160] At [9.79].

[161] At [9.80].

[162] At [9.81].

[163] At [9.82].

[164] At [10.4].

[165] At [10.5]-[10.9].

[166] At [10.11].

[167] At [10.11].

[168] At [10.11].

[169] At [10.12].

Author: Rhianna Morar

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