Anthony Drake
Justice Christian Whata
Te Piringa/Faculty of Law – University of Waikato recently hosted Justice Christian Whata who gave a lecture on tikanga and the law.
This highlighted the incorporation of tikanga Māori into the mainstream New Zealand legal system, an evolution that reflects a broader societal shift toward recognising Māori legal traditions as an integral component of our national identity.
Whata made several key points (as follows) about the interaction of tikanga Māori and New Zealand law, which are crucial for legal practitioners and the wider community to consider.
A coherent system
Tikanga Māori is not merely a collection of customs; it represents a robust jural system complete with its own norms and procedures. This system has been recognised increasingly in legal proceedings, where its relevance to and influence on contemporary law continue to grow.
As highlighted by the Supreme Court in Ellis, tikanga’s principles are being integrated within the common law framework of Aotearoa New Zealand, particularly in cases where its application proves pertinent.
The common law
The flexibility of the common law method, celebrated for its adaptability to individual cases, appears well-suited to accommodate tikanga values.
This method, grounded in the collective wisdom and practicalities of past rulings, is seen as stable yet responsive to the values of contemporary Aotearoa New Zealand. The challenge lies in extracting and applying these values, especially those like the inherent dignity of the person or the right to a fair trial which transcend political shifts.
Statutory acknowledgements
Significant statutory frameworks, such as the Resource Management Act, have begun to incorporate tikanga-related terms (eg, kaitiakitanga, mana whenua) and decision-makers are expected to interpret and apply these in line with tikanga Māori.
This marks a progressive step towards a more inclusive legal system that respects and embodies the values of our indigenous people.
Future directions
As tikanga gains prominence in legal contexts, its practical implications become more evident. For example, in property law, the assumption of sovereignty has not erased customary land rights established under tikanga which continue to demand recognition and respect.
Furthermore, the Law Commission acknowledges that while no case has yet found tikanga determinative in formulating common law rules, the potential exists and is increasingly likely as the legal system evolves.
The integration of tikanga into New Zealand law is not just about recognising the legal traditions of Māori; it is about enriching the entire legal system to reflect the values and identity of all New Zealanders.
This process requires a careful and thoughtful approach to ensure that as tikanga is woven into our legal fabric, it is done so in a way that maintains the integrity of both systems.
The integration of tikanga Māori into New Zealand employment law offers a significant opportunity for legal practitioners. Many organisations have adopted Māori values to create inclusive and diverse workplaces, enhancing cultural competence and strengthening employer-employee relationships.
This approach not only meets legal standards for fair treatment and anti-discrimination but also aligns with the Treaty of Waitangi’s principles of partnership and mutual respect. Incorporating tikanga fosters more effective dispute resolution, focusing on community and kinship, which supports collaborative workplace cultures.
As employment law progresses, tikanga could underpin a holistic framework for employee relations, making workplaces both legally compliant and culturally rich.
We must challenge our thinking about traditional norms and envision future possibilities. Education is crucial, and I would encourage practitioners to read the recent Te Aka Matua o te Ture – Law Commission report He Poutamu (NZLC SP24) Tikanga Māori.
Anthony Drake is a partner at Wynn Williams and President of the Employment Law Institute of New Zealand
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