Tikanga in the law – a recipe for chaos?

A growing number of jurists and academics are advocating for ‘tikanga Māori’ to be recognised as a legitimate source of law and legal rights.

The influence of tikanga on the common law was evident in the 2012 decision in the Takamore v Clarke judgment involving the burial of a man of Māori descent. In that case, the Supreme Court found that where tikanga is relevant, the common law requires reference to tikanga.

A decade later, the status of tikanga Māori in case law has developed significantly. It has taken root and is growing throughout the corridors of the judiciary. This is despite concerns that the inclusion of tikanga in the law offends against the most basic requirement of law, that is, it must be certain and clearly defined.

But what is tikanga?

There are many and varied descriptions of tikanga. The Te Aka Māori Dictionary defines tikanga as: correct procedure, custom, habit, lore, method, manner, rule, way, code, meaning, plan, practice, convention, protocol.

Tikanga is a complex system. Derived from the Māori word ‘tika’, meaning right or correct, ‘tikanga Māori’ is a customary set of rules and practices that regulated the tribal societies in New Zealand pre-1840. Tikanga includes spiritual beliefs and inherited values and concepts practiced from generation to generation. It consists of two layers – the overarching fundamental ‘tikanga Māori’, as well as variations among tribes in localised ‘tikanga iwi’. That is, tikanga is not universal, but dependent on place and time. It may change by agreement and adapt to new circumstances as they arise, determined by local hapu or iwi.

According to the Law Society (June 2023) “Tikanga is not a static thing. It is constantly evolving and as such the teaching, learning, and understanding of tikanga does too.”

The first person of Māori descent appointed to the Supreme Court of New Zealand, Hon. Justice Joe Williams, provides a list of core values at the centre of tikanga, namely:

Whanaungatanga, or the source of the rights and obligations of kinship;
Mana, or the source of rights and obligations of leadership;
Tapu, as both a control on behaviour and evidence of the indivisibility of divine and profane;
Utu, or the obligation to give and the right (and sometimes obligation) to receive constant reciprocity; and
Kaitiakitanga, or the obligation to care for one’s own.

Even with this list of core principles, in practice its values are hard to pin down and apply. The principles and processes for engagement are not settled and are being tested every day, whether in terms of the common law, statute law or policy making.

Māori authorities have made it clear the courts cannot determine tikanga and that this is up to iwi as they alone can interpret and explain tikanga. Therefore, the courts are required to call upon experts known as pūkenga to reveal its existence and its relevance in specific case circumstances. This also means that legal precedents in case law will not be authoritative as to the content of tikanga.

This begs the question - how is anyone to know how to comply, or order their affairs in accordance with tikanga when even the judges cannot know what it requires and are unable to engage in reasoned discourse about it?

Although the courts have made statements regarding the status of tikanga in the common law since the Takamore v Clarke case, Ellis v R was the first case to directly use tikanga without specific reference in the relevant legislation. The Supreme Court found it is not necessary for a case to specifically concern Māori litigants, Māori issues for tikanga to be relevant. None of those features existed in the Ellis case.

The far-reaching and serious consequences of including tikanga in legislation is highlighted in a 2021 Court judgement made under the Marine and Coastal Area (Takutai Moana) Act in the Edwards (Whakatōhea) case. In his controversial decision to award customary marine title to claimants, Justice Churchman ruled that holding the specified area in accordance with tikanga outweighs the need to consider the second limb of the test, that is, to have exclusively used and occupied the specified area from 1840 to the present day without substantial interruption. Because of this ruling much of New Zealand’s foreshore and seabed is likely to end up awarded to multiple Māori groups. That is, unless the government enacts an urgent law change to better reflect the intention of parliament. At the time of the passing of the legislation in 2011, the public was assured by the architect of the Act, the Attorney-General Chris Finlayson, that no more than 10 percent of New Zealand’s 20,000 km coastline would eventually be covered by Māori customary title.

Bringing tikanga into the courtroom is cause for celebration for some, who are hailing the Edwards (Whakatōhea) decision as a blueprint for the ongoing interaction of tikanga Māori and New Zealand’s common law. On the other hand, there is much concern about the ramifications of this controversial adoption of a tikanga lens when determining whether customary marine title exists under s.58 of the Marine and Coastal Area Act. This concern is exacerbated when Māori lore enters a jurisdiction, as illustrated by passages from the court’s ruling, which reveal how ill-defined and esoteric the notion of tikanga is. For example, the judgement includes the following clause:

‘The tikanga also relates to the belief systems of Māori where they have genealogical ties dating back to Ranginui [Father sky] and Papatuanuku [Mother earth] and also the belief system of belonging to an ancestor that was already living here in Aotearoa way before the Greet Fleet (the canoes) landed…’

Lawyer and former MP, Stephen Franks, believes tikanga gives judges a license to dispense with certainty. He says:

“What we are doing is licensing our judges to decide cases on how they feel and not according to law. Because it is unwritten, tikanga is easily invented to suit and you can’t subject it to the normal rationality constraints.”

The influence of tikanga in law is undermining democracy and the rule of law

The ongoing development of tikanga is of concern to our system based on the rule of law, which is a critical factor for a democracy, rooted as it is in equal rights and accountability. Adherence to the rule of law creates legal certainty, protects the rights of all people, and limits the arbitrary exercise of power. A tikanga based system threatens these principles, and with it the stability of our country.