Natalie Coates & Tai Ahu
Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) is concerned at recent reported comments by Justice Minister Paul Goldsmith that tikanga Māori introduces unpredictability into the law that could deter investment.
Tai Ahu
It has been reported that the minister at a Law Association event warned against a “bespoke” New Zealand legal system and indicated a willingness to overwrite judicial decisions where tikanga and Te Tiriti o Waitangi obligations are engaged.
Te Hunga Rōia Māori disagrees strongly with the minister’s reported views.
Tikanga Māori is not a bolt-on that makes our law “bespoke” in a negative sense. It is the first law of Aotearoa, and it has been recognised for generations in statutes, court decisions and treaty jurisprudence. All legal systems are, by definition, shaped by their own histories and values. The common law itself is “bespoke” to the communities that develop it. For New Zealand, that means a legal system grounded in both tikanga Māori and the common law tradition.
Natalie Coates
Far from being a weakness, this is a source of strength and legitimacy.
The implication that tikanga is inherently unpredictable is wrong. Tikanga can be and is discerned by the courts, guided by a substantial body of precedent, evidence and resources. Judicial recognition of tikanga has been careful, principled and incremental. It is anchored in the same legal standards of fairness, reasonableness, good faith and proportionality that underpin all judicial reasoning.
Recognition of tikanga does not weaken legal rigour but strengthens it. Indeed, a number of recent senior court decisions underscore the limitations of tikanga in both civil and criminal contexts.
Eroding public confidence
More disturbing is that the remarks come from the Minister of Justice. It is inappropriate for a member of the executive to threaten imminent legislative repeal in the event that particular judicial reasoning is deployed. Such statements risk eroding public confidence in the courts and amount to a veiled threat to judicial independence – a far greater danger to the rule of law than the incorporation of tikanga.
Also of concern is the minister’s reliance on the Marine and Coastal Area (Takutai Moana) legislation as an example. It is misleading to claim that the proposed amendments are about clarification and certainty. In reality, they represent an erosion of long-held rights that Māori have fought for across generations.
Framing these amendments as part of any quest for “certainty” misrepresents their actual purpose and diverts attention from the ongoing denial of Māori property rights recognised at law.
What creates instability is a government that routinely legislates over court decisions it dislikes and uses urgency to an excessive extent as a means of avoiding public input and scrutiny. The recent and abrupt changes to pay equity laws is one example. Such actions undermine the separation of powers, erode confidence in the rule of law and generate far greater unpredictability for all, including investors.
International experience confirms this. Canada incorporates First Nations rights into its written constitution; Australia recognises Aboriginal customary law in land contexts; South Africa protects customary law in its Constitution.
None of these countries has seen investment dry up as a result. Likewise, there is no evidence that the application of tikanga is stifling investment in Aotearoa.
Strengthens legal system
On the contrary, Māori have a long and proven record of co-investing with international partners, from the Sealord fisheries settlement to the recently announced $1 billion partnership between Waikato-Tainui and Brookfield.
Māori entities are themselves a source of foreign direct investment – one of the cornerstones of the government’s own economic recovery strategy. Moreover, the values of Māori organisations typically align well with those of international business partners, particularly from Asia, which the government has identified as a priority region for investment growth.
Te Hunga Rōia Māori rejects the suggestion that economic certainty would be maximised by excluding tikanga from our legal system. Such comments are assimilationist and rest on the discredited assumption that monoculturalism is the path to prosperity.
We instead affirm that recognising tikanga strengthens our legal system, enriches our jurisprudence and reflects the treaty partnership at the heart of Aotearoa. In short, the recognition of tikanga strengths the rule of law. By contrast, rhetoric from the executive that disparages judicial engagement with tikanga undermines the separation of powers at the core of our constitutional order.
Respect for the courts, including their role in developing and applying the law, is essential to both investor confidence and public trust.
Natalie Coates and Tai Ahu are Tumuaki, writing on behalf of THRMOA
Utterly predictable nonsense from THRM (shared by the Law Commission & the judiciary) – tikanga is a system of beliefs and practices, both historical and current, that individual iwi and hapu interpret and apply as they believe appropriate – historically it has never been seen as ‘law’ despite the best efforts of some to convince us otherwise. I for one am glad Goldsmith is willing to confront and address this issue.
THRM deny the truth of “recent reported comments by Justice Minister Paul Goldsmith that tikanga Māori introduces unpredictability into the law that could deter investment.” Do they also deny the accuracy of “[114] The requirements for custom to exist as a general custom1 and to be certain and consistent do not accord with the nature of tikanga. Traditional legal systems tend to be more focused on values and principles rather than rules oriented. Further, one of the essential strengths of tikanga is its ability to adapt to new conditions and to have local variations as appropriate. These tests for certainty and consistency, being contrary to the very nature of tikanga, are therefore clearly inappropriate.” The Minister has solid support from Justice Glazebrook, the author of that passage in the Ellis continuance decision, for his view concerning unpredictability. As tikanga is uncertain and inconsistent, it must also introduce unpredictability into the law. But the proponents of tikanga do not care. Certainty, consistency and predictability are to be sacrificed. That’s the effect of what Glazebrook J said. THRM say “The implication that tikanga is inherently unpredictable is wrong. Tikanga can be and is discerned by the courts ….” Discerned? By what means? Saying it is not inherently unpredictable doesn’t make it predictable. THRM should explain why Glazebrook J is wrong.
Tikanga has been received and applied as customary law in many New Zealand cases, but not until Ellis [continuation] has it been suggested as a self-standing body of ‘first law’.
Section 3 of the Senior Courts Act 2016 affirms New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament. This means that even the Supreme Court must apply and not rewrite legislation.
Lawyers are by virtue of s 4 of the Lawyers and Conveyancers Act 2006 bound to uphold the rule of law which is the relevant fundamental obligation in this debate. It is therefore legitimate to question how wider recognition of tikanga and kaitiakitanga fits within the rule of law as conceived in a Westminster system.
As Peter Watts points out in his scholarly article “Ellis v R: A Revolution in Aotearoa New Zealand, Welcome or Not” [2025] New Zealand Law Review 47 by opening the door to the potential application of tikanga into any question of the common law and into any question of statutory interpretation, the majority judgments in Ellis v R are, legally speaking, engaged in a revolution. The political context is framed against this statement made in parliament by Rawiri Waititi, “Today we made a declaration – in the name of our mokopuna – that we would no longer allow the assumption of this parliament to have superiority or sovereignty over te iwi Māori.” (NZPD 30 May 2024, Budget debate)
While New Zealand has come a long way by recognising the Treaty of Waitangi in law and resolving claims, if we are to embrace tikanga and kaitiakitanga as ‘first law’ we are only at the very beginning of the process, the complications of which may be understood from a reading of the article by Bede Harris, “Indigenous Law in South Africa – Lessons for Australia?” (1998) 5 JCULR 70.