Matariki: celebrating tikanga in the law

​​This article was published as below in issue 21 of LawNews on 28 June 2019 and written by senior associate (Ngāti Porou, Ngāti Rangitihi) Te Aopare Dewes and solicitor (Ngāi Tahu) Liam Stoneley.

Matariki is the Māori name for the Pleaides star cluster, which this year became visible in our night sky from Tuesday 25 June.

For many Māori, its appearance marks the start of the new year and an opportunity for reflection on what has gone before and what is to come.

Celebrating Matariki is becoming mainstream as more New Zealanders embrace Aotearoa’s bicultural identity – a trend mirrored in the law by the adoption of tikanga Māori as a lever to assert a uniquely Māori perspective on
the world.

Statutory recognition of tikanga Māori began in the early 1990s with the Resource Management Act 1991, Te Ture Whenua Māori Act 1993 and the first treaty settlement Acts.

In recent settlements, Te Urewera and the Whanganui River were made legal entities with the same rights as a person, both to ensure their protection and to acknowledge their cultural importance to iwi, hapū and whānau.

Other taonga which may be candidates for this treatment are Aoraki to Ngāi Tahu and Tongariro to Tūwharetoa.

The Sentencing Act 2002, under s 27, allows for offenders to request that the court hear evidence on how their personal, family, whānau, community and cultural background may have contributed to the offence and how they might be relevant to any resolution or rehabilitation processes and to sentencing.

And, more recently, the concepts of mana tamaiti, whakapapa and whanaungatanga were introduced into statute through amendments to the Oranga Tamariki Act. These will come fully into force on 1 July this year.

Judicial recognition

There have been three significant Supreme Court decisions bearing on tikanga.

Takamore v Clarke [2012] NZSC 116

In this judgment, the Supreme Court opened the door to the judicial application of tikanga.

In dispute was who had the right to decide where James Takamore was buried – his hāpu in accordance with Tūhoe tradition or his partner and executor, Denise Clarke.

The appeal was taken by Josephine Takamore, James’ sister, who wanted the court to recognise Tūhoe custom as an element of the common law (it was accepted by all parties that there was no statute to decide the issue).

All three courts – the High Court, the Court of Appeal and the Supreme Court – found the decision was Denise Clarke’s to make, but not unilaterally.

Tipping, McGrath and Blanchard JJ in the Supreme Court ruled that:

the common law of New Zealand requires reference to the tikanga, along with other important cultural, spiritual and religious values...as matters that must form part of the evaluation. Personal representatives are required to consider these values if they form part of the deceased’s heritage and, if the dispute is brought before the court....Māori burial practice must be taken into account. Consideration of the tikanga is accordingly required by the common law in this area.
Ngāti Whātua Ōrakei v Attorney-General [2018] NZSC 84

This is a landmark case with the potential to transform how the Crown engages with Māori.

It arose when, without consultation, the Crown offered land to Ngāti Paoa and the Marutūāhu Collective in areas over which Ngāti Whātua Ōrākei asserted manu whenua.

Importantly, these interests had been recognised in Ngāti Whātua Ōrākei’s treaty settlement.

Ngāti Whātua Ōrākei launched judicial review proceedings challenging the transfer of the properties. To duck this challenge, the Crown voided its decisions, saying the offer was to be subject to Parliamentary approval.

It then sought to strike out Ngāti Whātua Ōrākei’s claim on the basis that it was covered by the “non-interference principle” prohibiting the courts from dictating what Parliament can and cannot consider.

That strategy proved fruitful in the High Court and in the Court of Appeal. But not in the Supreme Court, which ruled it would be “overbroad” to suggest because a decision of the executive may become the subject of legislation, it should be outside the courts’ function “to make declarations as to rights”.

The court granted Ngāti Whātua Ōrākei the right to return to the High Court to have its substantive rights heard.

In particular, it found the iwi’s claim that any land decisions made under the Crown’s overlapping claims policy must comply with tikanga was at least arguable and “should be permitted to proceed”.

Chapman Tripp has represented Ngāti Whātua Ōrākei at all stages of this litigation. We are awaiting a date for the High Court hearing.

Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122

The Supreme Court ordered the Department of Conservation (DoC) to reconsider concessions it had granted Fullers Group Ltd and the Motutapu Island Restoration Trust for commercial tour operations on Rangitoto and Motutapu.

The basis for the order was that consent may not have been allowed had DoC given appropriate consideration to factors of mana whenua (essentially tikanga) excercised by Ngāi Tai ki Tāmaki over the islands.

Arbitral recognition

Tikanga Māori can also be accessed in contractual arrangements through alternative dispute resolution procedures and bespoke models such as in Waikato-Tainui’s Te Rongo, which uses aspects of negotiation, mediation and
arbitration.

Other less formal bodies, such as Whakapapa committees or Kaumātua councils, can also be appointed to deal with specific disputes.

An arbitrator or an arbitral tribunal can elect to determine the dispute in accordance with tikanga Māori or “non-national” law.

Looking back in the spirit of Matariki, we can see progress has been made in embedding tikanga Māori into New Zealand law and jurisprudence.

While these are still small beginnings, we expect the trend to continue and to be both distinctive and positive for all New Zealand.

Ko te pae tawhiti, whāia kia tata. Ko te pae tata, whakamaua kia tīna!

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