The momentum has continued in 2023, following the landmark Supreme Court decision in the Ellis case at the end of 2022 [1], for increasing recognition in litigation of tikanga Māori as part of New Zealand law. This recognition is occurring through application of Te Tiriti o Waitangi clauses in statutes [2], application of direct reference to tikanga and tikanga principles in statutes, and through evolution of the common law. In parallel, parties to litigation are increasingly drawing on tikanga and Te Tiriti-based arguments as a possible basis for a claim or defence.

Looking ahead to 2024, while the new Coalition Government has put debate about the principles of Te Tiriti squarely on the political and policy agenda (through the coalition agreements), we expect the slow but steady recognition by our courts of tikanga as a part of New Zealand law, with its own legal force, to continue unabated.

The release of the Law Commission’s He Poutama Study Paper 24 in September 2023 is a clear refection of this momentum [3]. He Poutama provides an extensive account of what tikanga is and how tikanga and state law might best engage. It highlights the existing breadth of application of tikanga as part of New Zealand law [4]. As well as detailing the development of tikanga as part of the common law, as statute law, and as law and custom applicable in its own right, He Poutama details the significant volume of litigation (and expert evidence) that is seeking to engage with tikanga values and processes in areas as diverse as environmental law, criminal law, family law, and judicial review of public sector actions and decision making.

There is much we could focus on in this area from the last 12 months. One developing field has been litigation involving application of tikanga in what are essentially commercial transactions. In 2023 the High Court engaged with arguments based on tikanga principles in relation to a case involving an application by the Official Assignee for a possession order over land following bankruptcy of the owners. The owners had sought to transfer the land to a whanau trust and argued that tikanga would require that the creditors sit down and engage with them to resolve the matter with whanau, rather than make a possession order. The High Court held that tikanga could not be applied to override the effect of the Insolvency Act in that case, but that tikanga may nevertheless be relevant to the parties separately engaging and seeking to find a resolution to the matter [5].

Another case which drew on tikanga arguments in 2023 involved the repayment of a judgment debt to a Māori land trust, where the defendant argued (among other things) that the Court should not exercise its discretion to grant leave for enforcement proceedings based on application of tikanga principles. The High Court engaged extensively with whether tikanga was relevant (holding that it was), and on how it would affect the Court’s discretion in that case. Ultimately, the Court held that, contrary to the defendant’s position, there are many relevant tikanga principles (the defendant could not pick and choose that suited their case), and those principles were in fact consistent with enforcement in this case. Leave to commence enforcement proceedings was granted [6].

Another significant development in 2023 (albeit currently under appeal to the Supreme Court) was the jurisdictional change from the Māori Land Court into the High Court for cases involving Post Settlement Governance Entities (PSGEs) set up as discretionary trusts (trusts established to hold and manage Ti Tiriti settlement redress on behalf of iwi and hapu) when the discretionary trust is established to hold and manage a range of assets, rather than only land. In Kruger v Nikora [7], a case involving an application fled with the Māori Land Court regarding the Tūhoe Te Uru Taumatua Trust, the PSGE for Ngāi Tūhoe, the Court of Appeal held that the Māori Land Court did not have jurisdiction to grant orders in relation to that post settlement governance entity as it was not a trust constituted in respect of general land owned by Māori per s 236 of the Te Ture Whenua Māori Act 1993.

If the decision is upheld on appeal to the Supreme Court, we may likely see an increase of PSGE litigation (which is often rounded in tikanga based dispute resolution processes) in the High Court which otherwise would have originated in the Māori Land Court. That will raise the ongoing issues and discussion about the interpretation and application of tikanga in the High Court and whether this forum is best suited to respond to such disputes when they arise. The jurisdiction issue is also significant as the Māori Land Court has a broader, more intensive supervisory jurisdiction than the High Court (including in relation to the appointment and removal of trustees) and it can be easier and cheaper for beneficiaries to access the Māori Land Court.

Some of the key advances in judicial recognition of tikanga principles in 2023 occurred as part of employment litigation. We have seen an increase in the number of employees challenging the actions of employers who have failed to adequately consider tikanga principles as part of the employment dispute resolution process. There have been both Employment Relations Authority determinations and Employment Court decisions addressing this issue [8]. The general principle arising from these cases is that, where an employer has expressed a commitment to kaupapa Māori and tikanga principles, they are expected – as a matter of contract, of fairness and reasonableness as an employer, of good faith relations, and in the public sector, as a matter of heightened statutory obligation – to act consistently with that commitment in their employment relationships/practices. As we move into 2024, we expect the Employment Court will grapple with this issue further, particularly in the context of good faith duties.

In addition, recognition of tikanga continues to be a key aspect of judicial review of public sector decision making across a wide range of sectors in 2023, and this will almost certainly continue, pending serious legislative change by the current Coalition Government.

As part of these developments, common tensions arise across all areas of litigation involving claims and arguments based on tikanga and application of tikanga principles in our general courts. Key among them is who can and should define tikanga, and to what extent do courts have a role in determining tikanga disputes and a place in recognising and upholding tikanga.

In the Ellis decision, the Supreme Court expressly urged caution, emphasising that it “must not exceed [its] function when engaging with tikanga”, and that “care must be taken not to impair the operation of tikanga as a system of law and custom in its own right” [9].

The Law Commission’s He Poutama paper is intended to help all parties to potential litigation where tikanga principles may be relevant, as well as lawyers and the courts, to gain a common understanding and to find a way through.

For anyone engaging with litigation where tikanga principles are relevant – and we expect to see more of these in 2024 and beyond, and in a wider range of legal contexts - He Poutama is likely to become essential reading.
 

He Poutama excerpt

Appendix 2 of He Poutama compiles tikanga as expressed in evidence presented in legal proceedings. It includes an explanation of tikanga by Tā Hirini Moko Mead (Ngāti Awa) and Tā Pou Temara (Ngāi Tūhoe) in a joint statement as follows:

“Tikanga is the first law of Aotearoa. It is the law that grew from and is very much embedded in our whenua (land). Tikanga Māori came to the shores of Aotearoa with our Māori ancestors, starting with Kupe and those on board the waka (canoe) Matahourua. In some traditions, tikanga merged with that already present. Tikanga operated effectively for around a millennia before Pākēha arrived. Tikanga is the Māori “common law”. It is a system of law that is used to provide predictability and are templates and frameworks to guide actions and outcomes. The term ‘tika’ means ‘to be right’. Tikanga Māori therefore means the right Māori way of doing things. It is what Māori consider is just and correct. Tikanga Māori includes all of the values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct. Tikanga is therefore comprised of both practice and principle. That is, it includes both the rules (what you should and should not do) as well as the principles that inform the practical operation and manifestation of the rule. The customs or rules of tikanga are acknowledged when they are maintained by the people and are observed in fact.”

In addition, Hon Justice Joe Williams of the Supreme Court has described tikanga as “Law designed for small, kin-based village communities. It is as much concerned with peace and consensus as it is with the level of certainty one would expect of normative directives that are more familiar in a complex non-kin-based community. In a tikanga context, it is the values that matter more than the surface directives. Kin group leaders must carry the village with them in all significant exercises of legal authority. A decision that is unjust
according to tikanga values risks being rejected by the community even if it is consistent with a tikanga-based directive.”

See Williams, Joseph “Lex Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern New Zealand law” (2013) 21 Wai L Rev 2.

References and footnotes

1.    Peter Ellis v R [2022] NZSC 114. 
2.    Article 2 of Te Tiriti protects Māori rangatiratanga, which includes chiefy authority and self-determination             rooted in tikanga.
3.    He Poutama Study Paper 24
4.    See Appendix
5.    Bamber v Ofcial Assignee [2023] NZHC 260. 
6.    Doney v Adlam (No 2) [2023] NZHC 363. 
7.    Kruger v Nikora [2023] NZCA 179. 
8.   Pact Group v Robinson [2023] NZEmpC 173; GF v Comp troller of the New Zealand Customs Service                [2023] NZEmpC 101; Moke v Raukura Hauora o Tainui Trust [2023] NZERA Auckland 603; SFC v YKQ              [2023] NZERA Christchurch 529. 
9.    Peter Ellis v R [2022] NZSC 114 at [22].