The Intertwining of Tikanga into Aotearoa’s Common Law: Trying to keep up

It is now settled law that tikanga forms part of the common law in New Zealand.  Following the Supreme Court decision in Ellis v R (Continuance)[1], the use of tikanga has gained momentum in most areas of the law, however, its application is still largely uncertain.  With the fast pace of this development, we consider whether the judicial system, and litigation lawyers in particular, are keeping pace.

What is it?

As pūkenga (tikanga expert), Sir Hirini Moko Mead, observes:

“Tikanga is the Māori “common law”.  It is a system of law that is used to provide predictability and are templates and frameworks to guide actions and outcomes.

The term ‘tika’ means ‘to be right’.  Tikanga Māori therefore means the right Māori way of doing things. It is what Māori consider is just and correct.” [2]

Sir Hirini Moko Mead has also described tikanga as embodying:

“…a set of beliefs and practices associated with procedures to be followed in conducting the affairs of a group or an individual.  These procedures are established by precedents through time, are held to be ritually correct, are validated by usually more than one generation and are always subject to what a group or an individual is able to do…”[3]

Mead continues:

“Tikanga are tools of thought and understanding.  They are packages of ideas which help to organise behaviour and provide some predictability in how certain activities are carried out.  They provide templates and frameworks to guide our actions and help steer us through some huge gatherings of people and some tense moments in our ceremonial life. They help us to differentiate between right and wrong and in this sense have built-in ethical rules that must be observed.”[4]

Ellis v R (Continuation)

The decision of Ellis v R (Continuation)[5] was an unlikely case for one of the most influential cases in tikanga jurisprudence to date. 

Mr Ellis was convicted of child sex offences in 1993.  In July 2019, he was granted leave to appeal the convictions to the Supreme Court.  However, he passed away before the appeal could be heard.  The Supreme Court, therefore, had to decide whether to exercise its discretion to allow his appeal, despite his death.  Notably, none of the litigants or alleged victims were Māori and neither counsel for the Crown, or Mr Ellis, raised tikanga in submissions or argument.  Despite this, the Court determined it was an appropriate case to discuss the developing place of tikanga in Aotearoa law.

The Court unanimously held that tikanga has been, and will continue to be recognised in the development of the common law in Aotearoa/New Zealand in cases where it is relevant.  Tikanga also forms part of the law as a result of being incorporated into statutes and regulations and may be a relevant consideration in the exercise of discretion.  This was just a confirmation of the law, rather than a new development.  More than ten years earlier, the Supreme Court held that the common law could be informed by tikanga values in Takamore v Clarke.[6]

Williams J provided some useful comments as to when tikanga may be relevant.  Broadly, he considered that tikanga may be relevant when the facts suggest it, and it has not been excluded by statute.  Specifically, it may be relevant to the identity or expectations of the parties or to the dispute's particular setting.  He asked whether the nature of the dispute gives rise to considerations of broad policy importance in respect of which a tikanga perspective may assist.  Finally, it may also be relevant if an area of the common law is developing, and such development would benefit from a consideration of relevant tikanga principles.[7]

The Court (by majority of Winkelmann CJ, Glazebrook and Williams JJ) also held the colonial test for incorporation of tikanga in the common law should no longer apply.  Prior to Takamore and Ellis, the colonial incorporation test required the Māori custom to have existed as a general custom of Māori, not be contrary to statute law, and reasonable, taking into consideration the whole of the circumstances. [8]  The Court overruled that test in Ellis, with Glazebrook JJ considering them “colonial relics with no place in modern Aotearoa/New Zealand.”[9]  However, the Supreme Court did not go on to articulate a new test to replace it.

The Court in Ellis only provided general and limited guidance regarding the application of tikanga.  In doing so, the Court left open a number of questions.  The most obvious of these are to what extent is tikanga likely to be relevant in the future, and in what context?  Other questions include: Who has the authority to determine tikanga?  How should differences in localised and variable expressions of tikanga among iwi, hapū, marae and whānau be reconciled?  And, where tikanga conflicts with the common law, how should that conflict be resolved?  The consequence of the decisions to date is that tikanga now has potentially broad application, but how, when, and to what extent it will be applied remains uncertain. 

Tikanga in commercial disputes

Following Ellis, there has been an increase in cases in which the court has been asked to consider tikanga values as part of the relevant context when developing the common law, including in commercial disputes.

One striking example of this is Smith v Fonterra.[10]  This case raises a number of novel issues.  It is relevant in the tikanga space as the plaintiff, Mr Smith, an iwi leader, and elder of Ngāpuhi and Ngāti Kahui, argues that tikanga should inform the development of Aotearoa’s tort law, as it relates to climate change.  He pleads causes of actions in public nuisance, negligence and a proposed new tort relating specifically to climate change, against seven of New Zealand’s largest greenhouse gas emitters.  Mr Smith claims that each of the companies have materially contributed to the climate crisis and have damaged, and will continue to damage, his whenua and moana.

On 7 February 2024, the Court released its highly anticipated judgment.  It allowed Mr Smith’s claim to proceed to trial.  It also affirmed the possibility that tikanga can inform the formulation of tort claims, citing in support several cases (including Ellis and Takamore).  The Court, however, declined to make any further comments at this early stage, given all it had before it were factual assertions for strike out purposes.  Instead, the Court said Mr Smith’s prospects at trial would depend, in part, on the quality of evidence, including in relation to tikanga.  The trial court would also need to grapple with the fact that Mr Smith purports to bring proceedings not merely as a proprietor of land who has suffered loss, but as a kaitiaki and on behalf of whenua[11] wai and moana, which are distinct entities in their own right.  In addition, the trial court will need to consider some tikanga conceptions of loss that are neither physical nor economic.[12]

The Court also gave a clear direction that “addressing and assessing issues of tikanga cannot simply be avoided”, leaving no doubt that if, and when, the case proceeds to trial, the High Court will have to grapple with tikanga, including extensive expert evidence on the subject.

There have also been a number of trust cases which have considered tikanga.  One of these is Doney v Adlam.[13] The application concerned the enforcement of a judgment issued by the Māori Land Court in 2014, where the respondent, Mrs Adlam was ordered to repay approximately $15 million to a Māori land trust.  Mrs Adlam argued that the Court should not exercise its discretion to grant leave for enforcement proceedings based on the application of tikanga principles.  However, the Court considered that any dispute resolution process that seeks to invoke tikanga will depend on a range of variables that are context specific.  While the Court held that tikanga was relevant to the exercise of its judicial discretion and the trustees’ duties in that case, ultimately it found that the relevant principles of tikanga reinforced Mrs Adlam’s responsibility to repay the trust the judgment debt.  This case is interesting as it shows that a claimant cannot pick and choose which tikanga concepts are relevant.  Further, tikanga is increasingly becoming more relevant to the exercise of discretions.

Another trust case which raised tikanga is Paton v Acropolis Holdings Limited.[14]  The plaintiff argued that the trustees in this case should take into account tikanga principles, and such principles favour the outcome he sought.  In coming to his decision, Churchman J said there was insufficient evidence of what the applicable tikanga was to make a definitive determination.  His Honour cautioned that for the court to have made a definitive determination, there would need to be detailed expert evidence of the applicable tikanga.  He affirmed that it was open for the applicant to raise tikanga, as it is now settled that it is part of the law of New Zealand.  As a result, his Honour said, tikanga can be applied where it is relevant, provided that there is an evidential basis establishing what the tikanga principles are, and how they should be applied. 

The Law Commission’s paper

A central message of the Law Commission’s recent paper, He Poutama (NZLC SP24), is that those wishing to engage with tikanga must view it through a ‘tikanga lens’ – it must not be viewed from a non-Māori lens, or shoehorned into an English law framework.  It should be defined by reference to tikanga as a complete system in which the core concepts are intertwined and exist as an interconnected matrix.  This includes engaging with concepts that are “multi-dimensional, with multiple layers of consciousness and connection, which include the physical and the metaphysical.”[15] The Law Commission also considers that when properly applied to the facts, tikanga delivers determinate outcomes that have the “coherence and consistency that are vital for any legitimate regulatory system”.[16]

Practical guidance

Given the various Courts’ comments that tikanga will continue to develop on a case-by-case basis, it may be some time before clear principles regarding its application emerge.  In the meantime, and despite these uncertainties, lawyers and judges will have to continue to grapple with its application and scope.  As a result, advising clients regarding tikanga-based claims may be difficult. 

The Law Commission’s report highlights several practical issues which will confront litigants and their advisers.  One such issue is expert evidence – such input is likely to be essential in almost all cases involving tikanga.  However, identifying the correct expert and ensuring the expert is qualified to give such evidence will be challenging.  

This also raises the importance of the parties’ considering, at an early stage in the case, whether this is a case where tikanga may apply.  The Law Commission suggests this could occur at the first case management conference. 

Comment (by Ashleigh Moana-Howard)

Given tikanga’s broad application to almost all areas of the law,[17] it is clear that tikanga will continue to play an increasingly important role in litigation in New Zealand.  It is essential that lawyers should consider the possibility of tikanga being relevant to disputes they are involved in from an early stage, and be ready to pursue and defend cases relying on it.  If not, the law may develop faster than lawyers’ capacity to keep up.  Accordingly, it may be time for practitioners to consider upskilling in this area.  This would hopefully assist practitioners to engage with tikanga responsibly, and competently advocate for their clients.

ASHLEIGH MOANA-HOWARD IS A SENIOR SOLIcitor

[1] Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

[2] Statement of Tikanga of Sir Hirini Moko Mead and Professor Pou Temara at [23], which is annexed to the judgment of Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

[3] Mead, H, ‘The Nature of Tikanga,’ (Unpublished Manuscript Paper presented to Mai i te Ata Hāpara

Conference, Te Wānanga o Raukawa, Otaki, 11-13 August 2000) at 3-4.                                                                                                                                                                         

[4] Above n 3

[5] Above n 1.

[6] Takamore v Clarke [2012] NZSC 116.

[7] Above n 1 at [263] to [265].

[8] The Public Trustee v Loasby (1908) 27 NZLR 801 (SC).

[9] Above n 1 at [113].

[10] Smith v Fonterra Co-operative Group [2024] NZSC 5.  For further discussion of Smith, see Fee Langstone’s previous article, which can be accessed here.

[11]Loosely, those whose role it is to care for the environment and those with traditional authority in the particular environment.

[12] Above n 8 at [182].

[13] Doney v Adlam [2023] NZHC 363; [2023] 2 NZLR 521.

[14] Paton v Acropolis Holdings Limited [2024] NZHC 43.  Fee Langstone acted for the trustees.

[15]He Poutama (NZLC SP24).

[16] Above n 13 at [3.11].

[17] He Poutama (NZLC SP24) provides many different examples of how tikanga is relevant to environmental, criminal, employment, property, family, judicial review, and even suggests it has potential relevance to the New Zealand Bill of Rights Act 1990.`