On 3 May 2024, LawNews published an article by Gary Judd KC titled Senior King’s Counsel files a complaint about compulsory tikanga Māori studies for law students.
On 9 May 2024, Te Hunga Rōia Māori o Aotearoa issued an open letter responding to Judd KC’s opinion piece. This letter (published on pages 3 and 4 of this issue) presents a well-reasoned argument to Judd KC’s position. It highlights legislation and several cases demonstrating the recognition of tikanga Māori as law since at least 1858. Such contributions are not just valuable, but they are the cornerstone of fostering a more informed and nuanced debate on this issue.
The recognition of tikanga Māori as law has not only been a historical fact but continues to hold true in modern cases, including by the Supreme Court in Ellis, Takamore, Trans-Tasman Resources and Smith.
Tikanga issues are across nearly all areas of law, including judicial review, trust law and a recent leading employment case, GF v Comptroller of the New Zealand Customs Service. This reaffirms the importance and relevance of tikanga Māori across various areas in our legal system, a fact that we all should be aware of and respect as a body of legal professionals tasked with understanding, interpreting, arguing and applying the law.
Tikanga is not just part of the common law of Aotearoa; it is included in legislation such as the Resource Management Act 1991, Education and Training Act 2020, Oranga Tamariki Act 1989 and te Ture Whenua Māori Act 1993.
However, the absence of a direct reference to tikanga in legislation does not mean it is irrelevant. The Legislation Design Advisory Committee guidelines require those drafting legislation to consider whether the proposed bill would affect any practices governed by tikanga, emphasising the importance of diverse opinions in shaping our laws. To this end, like Huakina and the relevance of Te Tiriti as an interpretative aid of legislation (even where no express treaty provision exists in the relevant Act), an argument could be made that tikanga is an interpretive aid to colour the interpretation of legislation.
Finally, the Law Commission’s Report He Poutama released late last year extensively covers how tikanga applies across various areas of law.
Judd KC has failed to engage with how our courts and Parliament have expressed tikanga Māori as relevant across various areas. He also failed to consider how excluding tikanga as part of the law degree interacts with our obligations under the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008. Learning about tikanga is not just an esoteric matter but ensures that the next generation of lawyers is best equipped to represent their clients’ interests.
As the Māori population increases, together with the growing commercial influence of iwi, legal disputes with issues of tikanga will increase. Therefore tikanga as part of the curriculum makes sense to future-proof our rapidly developing legal landscape.
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