A recipe for chaos?

RULE OF LAW refers to a system whereby the Government and citizens (and other individuals) are bound by the law, and all are accountable under the law. Everyone must be treated under the same laws and possess the same rights. Simply put, this means that no one is above the law.
RULE BY LAW is a concept that sees the governing authority as somehow being above the law and has the power to create and execute law where they find it to be convenient, despite the effect it has on larger freedoms that people enjoy.

Tikanga - Is it Rule by Law?

The rule of law is a critical factor for a democracy, rooted as it is in equal rights and accountability. The rule of law creates legal certainty, protects the rights of all people, and limits the arbitrary exercise of power, which are the cornerstones of democracy.

In New Zealand, our ultimate source of law is Parliament, a body that is accountable to the people. Judges are responsible for interpreting the law and ensuring that it is applied fairly to all citizens. Their decisions can create common law, which sets a legal precedent for all other judges.

Common law has been developed by judges over the centuries. Parliament may repeal, modify, or develop the common law by statute.

The combination of statute and common law has been recognised by the state as New Zealand’s source of law for nearly two centuries. The nation’s legal system was established after the chiefs ceded sovereignty to the Queen of England in 1840.

However, over several decades a small group of jurists and academics (including Dr Moana Jackson, Ani Mikaere, and Dr Carwyn Jones) have been pushing for ‘tikanga’ (generally speaking, traditional Māori customary practices or behaviours) to be recognised as a third legitimate source of law in New Zealand.

What is ‘tikanga’?

The Law Commission's newly released study paper, He Poutama, describes tikanga as "a principles-based system of law capable of adaptation according to context”.

In 2021 the then Minister of Justice, Kris Faafoi, asked the Law Commission to draft a report on tikanga in our legal system “to offer guiding frameworks that will enable the coherence and integrity of both tikanga and state law to be maintained”. The resulting study paper ‘He Poutama’ was released in September 2023. The authors say it is intended to provide courts and the public sector with a framework for incorporating tikanga into common law and legislation.

“It gives those working in the courts and the public sector a principled framework to guide their interactions with tikanga as they develop the common law and write legislation”, says Law Commissioner Justice Whata.

Tikanga is not codified (written down), thereby requiring the courts to call upon experts known as pūkenga to reveal its existence and its relevance in specific case circumstances.

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

This being the case, a previous court's recognition of tikanga may not be applicable in a similar case before a future court. Additionally, a court's decision on tikanga cannot change the tikanga itself, which remains determined by hapū or iwi, (as seen in the case of Ngawaka v Naati Rhea-Ngatiwai ki Aotea Trust Board (No 2) 2021).

Given the properties of tikanga, it has more in common with the rule by law than the rule of law.

The engagement of both common law and statute with tikanga continues to evolve at a rapid pace. The principles and processes for engagement are not yet settled and are being tested every day, whether in terms of the common law, statute law or policy making. This is vividly illustrated in a recent Court of Appeal judgement made under the Marine and Coastal Area Act, whereby a radical application of ‘tikanga’ by the judiciary will likely deliver the entire New Zealand coastline and Territorial Sea into iwi control. 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 in his opinion, no more than 10 percent of New Zealand’s 20,000 km coastline would eventually be covered by iwi customary title.

This case highlights the danger of including ‘tikanga’ in the law. You can read more about the MACA example at ‘Tikanga trumps ‘state’ law’