Te Piringa | Faculty of Law at The University of Waikato recently hosted Justice Whata who gave a lecture on Tikanga and the law on 24 October 2024 as part of the Norris Ward McKinnon Lecture Series.   

This engaging presentation and discussion highlighted the incorporation of tikanga Māori into the mainstream New Zealand legal system. This evolution reflects a broader societal shift toward recognising Māori legal traditions as an integral component of our national identity.

Justice Whata’s lecture highlighted several key points concerning the interaction between tikanga Māori and New Zealand law, which are crucial for legal practitioners and the wider community to consider.

Tikanga as a coherent legal system

Tikanga Māori is not merely a collection of customs; it represents a robust jural system complete with its own norms and procedures. This system has been recognised increasingly in legal proceedings, where its relevance to and influence on contemporary law continue to grow. As highlighted by the Supreme Court in Ellis v The King [2002] NZSC 115, tikanga principles have started to be integrated within the common law framework of Aotearoa New Zealand, particularly in cases where its application proves pertinent.

The common law method and tikanga

The flexibility of the common law method, celebrated for its adaptability to individual cases, appears well-suited to accommodate tikanga values. This method, grounded in the collective wisdom and practicalities of past rulings, is seen as stable yet responsive to the values of contemporary Aotearoa New Zealand. The challenge lies in extracting and applying these values, especially those like the inherent dignity of the person or the right to a fair trial, which transcend political shifts.

Statutory acknowledgements and tikanga

Significant statutory frameworks, like the Resource Management Act 1991, have begun to incorporate tikanga-related terms (e.g., kaitiakitanga and mana whenua), expecting decision-makers to interpret and apply these in line with tikanga Māori. This inclusion marks a progressive step towards a more inclusive legal system that respects and embodies the values of our indigenous people.

Practical implications and future directions

As tikanga gains prominence in legal contexts, its practical implications become more evident. For example, in property law, the assumption of sovereignty has not erased customary land rights established under tikanga, which continue to demand recognition and respect. Furthermore, the Law Commission acknowledges that while no case has yet found tikanga determinative in formulating common law rules, the potential for such occurrences exists and is increasingly likely as the legal system evolves.

The integration of tikanga into New Zealand law is not just about recognising the legal traditions of Māori; it is about enriching the entire legal system to reflect the values and identity of all New Zealanders. This process requires a careful and thoughtful approach to ensure that, as tikanga is woven into our legal fabric, it is done so in a way that maintains the integrity of both systems.

The integration of tikanga Māori into New Zealand employment law offers a significant opportunity for legal practitioners. Many organisations have adopted Māori values to create inclusive and diverse workplaces, enhancing cultural competence and strengthening employer-employee relationships. This approach not only meets legal standards for fair treatment and anti-discrimination, but also aligns with the Treaty of Waitangi’s principles of partnership and mutual respect. Incorporating tikanga fosters more effective dispute resolution, focusing on community and kinship, which supports collaborative workplace cultures. As employment law progresses, tikanga could underpin a holistic framework for employee relations, making workplaces both legally compliant and culturally rich.

We must challenge our thinking about traditional norms and envision future possibilities. Education is crucial, and you are encouraged to read the recent Te Aka Matua o te Ture Law Commission report, "He Poutamu (NZLC SP24) Tikanga Māori".