The application of tikanga in Parliament during the passing of laws was an area of public division and debate as 2024 closed out. But away from the political and legislative stage, the steady recognition and application of tikanga by the Courts across a growing range of issues in dispute has continued much as anticipated over the past 12 months.

We expect this trend will continue, particularly in the context of disputes involving interpersonal issues. As some orthodoxy starts to emerge for consideration of tikanga – where relevant to the context – to resolve relational disputes, 2025 is also lined up to further test the boundaries for application of tikanga in situations involving potential torts and fiduciary duties. As a developing area of law, the case for all organisations understanding tikanga principles and how tikanga may apply to day-to-day interactions and to resolve disputes is becoming increasingly persuasive.

Recognition in disputes with a relational dimension

The Law Commission’s 2023 He Poutama Report on how tikanga and State law intersect describes tikanga Māori as including “all of the values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct.”[1]. That is, tikanga is closely connected with how people relate to, and interact with, one another. This relational dimension has been reflected in 2024 through increasing recognition and consideration of tikanga by our courts where relevant in disputes involving insolvency, employment and trusts and estates – all business-as-usual areas of law relevant in a wide range of factual contexts.

Insolvency

In the insolvency context, the High Court has recently considered the tikanga of koha (donations or offerings with an element of reciprocity) and ea (balance) in resolving a dispute about whether the forgiveness of a debt, claimed to be given as a koha, should be treated as a ‘gift’ for the purposes of the Insolvency Act 2006, or recognised as a koha that sits outside of the insolvency regime [2].

In Official Assignee v Honey, the respondent relied on the tikanga of koha to argue that her ownership of a house she had received partially by koha was not a gift for the purposes of the Insolvency Act as it did not involve a one-sided ‘taking’ (as would be the case in the context of a pure gift). She claimed it was given in recognition of the reciprocal relationship between the parties to the koha, and it thereby created ea and harmony between those parties.

As the koha was given in relation to Māori freehold land under Te Ture Whenua Māori Act 1993 [3], the High Court accepted tikanga as “properly an ingredient in a broader analysis in which the relevant statutes and common law have already developed rules or principles that must be taken into account”. Having done so, the Court drew on the tikanga around ea in finding that even with the giving of koha there was a reduction in the monetary value of the bankrupt’s assets available to the Assignee and creditors. Treating koha as something other than a gift would disrupt the sense of ea between the bankrupt and their creditors already established through operation of the Insolvency Act alongside the priority given to prospective purchasers set out in the Te Ture Whenua Māori Act. In effect, the Court found that recognition of tikanga was built into laws such as Te Ture Whenua Māori Act already operating in a Te Ao Māori context. Any additional application of tikanga principles needed to occur with a broader lens – in this case to the ea of the broader regime.

Employment

The employment jurisdiction has underscored the importance of providing the court with an appropriate level of detail and evidence about tikanga for the case at hand, whether that is by way of submissions, an expert’s statement of tikanga, or through use of a courtappointed pūkenga (expert). As the law is presently developing in this area, the Employment Court has been clear that it will exercise restraint in the absence of sufficient expert evidence. 

One recent example is the proceeding brought by Associate Professor Wiles against her employer, the University of Auckland, for unjustifiable disadvantage, breach of contract, and breach of good faith [4]. The plaintiff did not make an express claim of breach of tikanga, but made submissions on the role of tikanga in employment law generally, in particular the tikanga principles of manaakitanga, whanaungatanga, kotahitanga, and kaitiakitanga [5]. But the plaintiff provided no evidence from pūkenga on the application of tikanga to the matters at issue (as would generally be expected in circumstances where issues of tikanga arise that are outside the Court’s expertise). Significantly, Judge Holden in the Employment Court accepted that the University was bound to act consistently with tikanga insofar as it applied to the employment relationship, and confirmed she considered the relevant tikanga principles generally in making her decision. However, the Judge applied an expressly cautious approach due to the lack of evidence before the Court regarding the relevant tikanga principles, which limited her ability to apply them to the matters at issue. 

The emphasis on appropriate evidence on application of tikanga was echoed in MW v Spiga [6]. Here, the Employment Court considered the relevance of tikanga when assessing whether a non-publication order should be made in relation to a party to a dispute in the Employment Relations Authority. The Court found that tikanga was relevant to such an assessment, noting the natural synergies between tikanga and the relationship-centric nature of employment law.

While the Court emphasised the need for cautious application of tikanga by judicial bodies that are not the makers of tikanga nor experts in it (echoing the Supreme Court in the Ellis decision from late 2022), [7] it acknowledged the relevance both of case specific tikanga norms and that certain principles, like whakamā (shame or embarrassment), are likely to be relevant in most non-publication cases particularly where privacy or reputational concerns are involved. It reiterated that the weight given to tikanga principles in any particular case will depend both on the context and the availability of expert evidence.

Trusts and estates

Two recent cases relating to trusts and estates similarly confirm the importance of an appropriate level of evidence on tikanga and its application in this developing area of law.

Paton v Acropolis Holdings [8] involved an application to review trustee decisions concerning an estate as well as an application by the trustees seeking directions on the same decisions. The plaintiff (who, notably for present purposes, is pākehā) argued that tikanga principles such as mana, whakapapa (genealogical connection), and whanaungatanga (kinship) [9] supported his claim that the trustees’ decisions regarding the allocation of shares were unreasonable. Justice Churchman confirmed that tikanga could apply where the parties are pākehā (following the Ellis decision), indicating the key question is not what the ethnicity of the parties is but whether there is an evidential basis for tikanga to be recognised in the matter. Ultimately, the Court declined to apply tikanga on the facts of the case as it found there was insufficient evidence to establish the relevance of tikanga in assessing the reasonableness of the trustees’ decision.

In contrast, Adams v Adams [10] concerned a claim brought by an individual who was the mokopuna and whāngai (adopted by custom) [11] of a person who had passed away. The plaintiff sought an order for the sale of a property (purportedly) held in trust for the benefit of the deceased’s surviving children. While the specific requirements of the Property Law Act 2007 regarding the establishment of a trust were not followed, the Court considered the intentions of the settlors (the whānau) through a tikanga lens and found that they had established a trust to hold the property. The Court placed weight on detailed evidence that the whānau had operated consistently with tikanga in their management of the relevant property, particularly through their intent to hold the property collectively for the benefit of the whānau (and future generations) and in the way they interacted with one another and conducted hui (all of which involved acting in accordance with tikanga and acting as a collective).

Development of a unique, indigenous body of law?

As the Courts gain comfort with the notion that tikanga may have relevance in resolving certain relational disputes, the platform is set for 2025 to test boundaries for applying tikanga in the ongoing development of other parts of the common law.

One such area is the application of tikanga to fiduciary duties and equity. We have seen this recently in Stafford v Attorney- General,[12] where the High Court was asked to determine whether the Crown breached its fiduciary duties to the customary owners of land in Whakatū Nelson by not reserving a tenth of the land acquired by the New Zealand Company in the 1840s to create the settlement of Nelson. In October 2024, the Court recognised that tikanga was clearly relevant to the case (as a claim on behalf of a Māori collective for the return of ancestral land) and that the Crown had breached its fiduciary duties to the customary owners of the whenua. But the Court dismissed the claim for cultural loss (which was said to have arisen from the customary owners’ alienation from their land/whenua) as there was insufficient evidence to assess the loss suffered from a tikanga perspective.

The Court acknowledged extensive customary and expert evidence it received on tikanga and the relationship of Māori with land, and accepted the application of tikanga as a lens through which to assess evidence and legal arguments. But it stopped short of applying tikanga as a matter of substantive law in its own right. The plaintiffs had argued that the fiduciary duties owed must be informed by tikanga as well as English private law rules of equity; that there is ““a dialogue” between tikanga and the common law”, which “involves the weaving together of two systems of law.” [13].

In response, the High Court reiterated the risks noted by the Supreme Court (in Ellis) that “care must be taken not to pick and choose elements of tikanga, thereby depriving it of its essential value or distorting the concepts”, and that “ judges are not mandated to pronounce on or develop the content of tikanga”. The High Court held that the evidence received on tikanga did not go far enough to explain how the relevant tikanga concepts might apply to the specific case circumstances or how it had responded in similar circumstances. Ultimately, the Judge “trod lightly and with caution” in those areas where there was insufficient evidence and/or submissions regarding the interrelationship between tikanga and the common law, stating that the “proceeding (and judgment) should be read and understood as a contribution to an ongoing discussion about how to weave tikanga with state law as part of an incremental process.”[14]

.The Crown has appealed the High Court’s decision, and it is likely to be heard by the Court of Appeal in the next 12–18 months. It remains to be seen whether the Court of Appeal will shift the boundaries of private law concepts such as fiduciary duties to recognise the application of tikanga.

Finally, the Supreme Court’s decision (against strike out) in the Smith v Fonterra [15] case has been well canvassed including the Court’s acknowledgement that tikanga is relevant to consideration of Mr Smith’s claims in tort (in particular public nuisance). The Court said that aspects of tikanga will need to be addressed at trial, in terms of the plaintiff’s relationship with the relevant land and how that may impact on any loss and damage suffered in ways that are not necessarily financial or economic. The case has been referred back to the High Court for trial, scheduled to take place in 2025.

The relevance of tikanga in the formulation of tort and equity claims will be a key issue to watch in the coming years as these cases continue through the legal system.

Organisations from across the business, government and not-for-profit sectors are increasingly likely to be engaged in disputes involving arguments around the role and application of tikanga. Those that are proactive about the relevance of tikanga for their people and business will be best placed to respond when the need arises.