Anthony Grant
The Māori Land Court has held that the Family Protection Act (FPA) can be interpreted by reference to two quite different legal regimes: first, the conventional regime of judicial consideration by our courts as has taken place since the statute was enacted and second, by the principles of tikanga.
The Māori Land Court’s interpretation of the Act by reference to tikanga was set out in Julian v Ioassa [2025] NZFLR 147 and 2025 NZFLR 171.
The estate in question consisted almost exclusively of interests in Māori freehold land.
A daughter filed a claim under the FPA, but she died before her claim was heard. A brother contended that the mother had breached her moral duty by not leaving him and her other children any of her interests in Māori land.
These are some of the principles that Judge Warren of the Māori Land Court said were applicable to the tikanga interpretation of the statute, with my comments in italics:
- The court does “not necessarily need expert opinion or fact evidence of what tikanga is …” as “these are generally well understood by reference to publicly available material, the court’s own expertise and submissions by counsel” [47].
The suggestion that the public can learn what tikanga is from “the court’s own expertise” and from “submissions by counsel” is obviously questionable, as is the statement that “publicly available materials” exist that provide sufficient information about tikanga and its applicability to all the laws of New Zealand.
- The principles of tikanga are to be “applied or performed” and this will “evolve as circumstances change and as between iwi” [8]. In other words, how tikanga is to be applied is continually “evolving” and will presumably differ between one iwi and another.
The tikanga principles do not “translate into norms exactly equivalent to those of non-Māori, even with respect to moral duties” [57]. In other words, even though the most fundamental concept of the statute – that a will-maker must comply with his/her moral duties – may be answered in different ways under the two different legal regimes.
“The standards of a wise and just [Will-maker] must naturally provide for an objective Māori lens …” [86]
- Tikanga concepts are not be transplanted into established “common law categories” as “they may (and, I say, normally do) have broader relational ethical, moral and spiritual elements”. [57]
- When a Māori parent makes a will involving the disposition of Māori land, the parent has “a mandatory duty” to make provision for every child to inherit it [67].
Presumably even if the child is a millionaire and has no financial needs.
- Tikanga may be a uniform system that is applicable nationally or it can be confined to an iwi or hapu [72].
In other words, there can be many different tikanga interpretations in the country at the same time.
- “Whereas State law has rules with prescribed exceptions, tikanga is less rigid …” [74].
- Tikanga is not a set of rules that is readily set out in writing, with the consequence that ignorance by a will-maker of the principles of tikanga “is no defence”. [78]
- When dealing with Māori land, tikanga is to take precedence over the principle in the FPA that testamentary freedom is to prevail. [81]
It seems extraordinary that Parliament should enact a statute that can be interpreted by two quite different sets of principles; that one of those sets of principles is continually evolving; that the principles of tikanga can differ from one iwi to another; and that there is no written source to which a New Zealander can go to learn the principles of the different laws of tikanga that are said to exist.
One of the fundamental principles of countries that are governed by the rule of law is that the laws that apply to citizens should be in writing so that we can all learn what these laws are and what we must do to avoid being in conflict with them.
To have a set of principles that are unwritten and continually evolving is anathema to the rule of law. What right do the courts have to disagree with principles of tikanga that they consider unreasonable?
If tikanga is to be applicable in New Zealand, the least that can be asked of the State is that the relevant principles should be set out clearly in writing so that we can learn precisely what the law is. If this does not happen, our legal system is likely to face international criticism.
Barrister Anthony Grant is an adviser and litigator on the law concerning trusts and estates
Julian v Ioassa [2025] NZFLR 147
Julian v Ioassa [2025] NZFLR 171
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