The NZ Law Commission Study Paper Tikanga and the Law comments
In 2001, Te Aka Matua o te Ture | Law Commission published its Study Paper Māori Custom and Values in New Zealand Law to examine the impact of tikanga on state law and consider ideas for future state law reform projects that might give effect to tikanga. The Study Paper has had an enduring influence on the consideration of tikanga in both legal and policy contexts and remains one of our most frequently cited publications.
As we note in the Introduction, since 2001 there have been many developments in the ways that tikanga and state law intersect. Tikanga is increasingly being woven into statute and the common law while, at the same time, gaining wider recognition within state law as being an independent source of rights and obligations. Yet tikanga is not well understood outside of Māori communities. The breadth and depth of tikanga is often overlooked and misunderstood. This has potential implications both for the integrity of tikanga and the coherent development of state law.
In October 2021 the Minister of Justice asked the Commission to review the role of tikanga concepts in state law. We identified two main goals. One was to provide an account of what tikanga is. The second was to address how tikanga and state law might best engage.
In approaching the first goal, we have been acutely conscious of the immense significance of tikanga to Māori. We sought the assistance of pūkenga (experts) to guide us. Their directive was clear — any account of tikanga must occur from “the inside”, grounded in mātauranga (Māori knowledge). Early in the project, we also identified that mainstream consideration of the legal dimensions of tikanga was sparse. This paper attempts to fill this gap.
In approaching the second goal, we outline the evolution of state law as it relates to tikanga. This then sets the scene for the final part of our paper, in which we provide guidance on how state actors might engage with tikanga in a way that maintains the integrity of both tikanga and state law.
The Commission comments
... there have been many developments in the way that tikanga is addressed by state law. Tikanga concepts are prevalent in legislation. Tikanga “has been and will continue to be recognised” in the development of Aotearoa New Zealand’s common law in cases where it is relevant. Tikanga has been judicially described as the first law of Aotearoa New Zealand, a “free-standing legal framework”, and a “third source of law”. The largest cohort of courts, Te Kōti ā Rohe | District Court, has begun a process of incorporating tikanga into the fabric of its operation.
In consequence, demands have become pressing for legal and policy practitioners to engage more authentically with tikanga. Tikanga is still not well understood outside of the Māori communities where it is practised and lived, raising many questions. What is tikanga? Where do we find it? To whom does tikanga apply? As state law and tikanga engage, how and where are proper boundaries set — and by whom? How will risks and challenges be managed, enabling these systems to interact well? Our work has been done in a context where engagement between tikanga and state law is actively occurring, heightening the urgency.
Given these pressures, paths forward are needed to guide those approaching tikanga and assure all concerned that state law and tikanga are able to engage with one another with integrity. These two systems are already interacting. In this Study Paper, we have taken the view that there is little utility in the Commission readdressing whether or why state law and tikanga should engage. Instead, we have focused primarily on identifying ways in which they may properly do so, that are respectful of both systems’ parameters. The Study Paper’s purpose is to offer guiding frameworks that will enable the coherence and integrity of both tikanga and state law to be maintained. To legitimately address tikanga, an authentic understanding of it is also needed. The Study Paper aims to build understanding of tikanga that is both grounded in mātauranga (Māori knowledge) and connected with the law.
As Tā Edward Taihakurei Durie says, tikanga “is the set of values, principles, understandings, practices, norms and mechanisms from which a person or community can determine the correct action in te ao Māori”. Tikanga has long been recognised as having “the character and authority of law” and continues to shape and regulate the lives of Māori as it always has. Some aspects of tikanga are already a part of state law as a result of being incorporated, as described above, by courts through the common law and by Parliament in legislation.
At the same time, tikanga scholars acknowledge the “immense” ambit of tikanga, encompassing philosophical, ethical and social frameworks, processes and norms. As Dr Carwyn Jones for instance considers, tikanga has aspects of ritual and custom and spiritual and socio-political dimensions that go far beyond the legal domain, as well as being Māori legal knowledge and Māori legal tradition. Distinguished Professor Hirini Moko Mead describes the importance of precedent and procedure, saying that tikanga provides “procedures to be followed in conducting the affairs of a group or an individual” that are “established by precedents through time … validated by usually more than one generation”. He also says that: Tikanga are tools of thought and understanding. They are packages of ideas which help to organise behaviour and provide some predictability in how certain activities are carried out. They provide templates and frameworks to guide our actions and help steer us through some huge gatherings of people and some tense moments in our ceremonial life. They help us to differentiate between right and wrong with built-in ethical rules that must be observed. Sometimes tikanga help us survive.
When addressing tikanga in this Study Paper, we accordingly have preferred to use the word “tikanga” over other choices such as “Māori law”. The label “law” is unduly narrow, even while tikanga without doubt has legal quality. Reference to “Māori” in the phrase “Māori law” also tends to mask the reality of localised and variable expressions of tikanga among iwi, hapū, marae, whānau and other hapori Māori (“hapori” meaning section of a kinship group, society or community). For similar reasons, we do not use the terms “Māori custom law” or “custom law” — although, as will be explained in Parts Two and Three, custom law is a phrase accurately used to describe one common law category of tikanga recognition. In this Study Paper, we simply call tikanga: tikanga.
