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Tikanga has been a topical issue within the profession and the media. The issue of tikanga becoming a compulsory paper in the 2025 LLB degree curriculum has also resulted in a complaint to the Regulations Review Committee. LawTalk engages in kōrero with those who are working first hand with tikanga and the law, what this means for our next generation of lawyers and why this matters in contemporary Aotearoa.
In 2025, a new generation of law students will embark on a journey that each lawyer recalls with varying degrees of fondness. Amongst the courses they must take if they wish to seek admission to the High Court of New Zealand will be a new subject – tikanga Māori, Māori laws and philosophy.
This new educational requirement was introduced by the Professional Examinations in Law (Tikanga Māori Requirements) Amendment Regulations (the Regulations).¹
A recent complaint to the Regulations Review Committee about the Regulations has sparked debate about the place of tikanga as a compulsory educational requirement. The complaint relates to the procedure followed by the New Zealand Council of Legal Education, and also suggests the Regulations may infringe rights and liberties and be an unusual use of the Council’s regulation-making power. It seeks for the Regulations to be disallowed.
This edition, LawTalk has engaged in a kōrero with our educators and members of the profession, who share in their own words why the new requirements not only make sense but also show there is nothing that new about tikanga Māori walking alongside the general law in Aotearoa New Zealand.
Our contributors, some of whom have successfully represented clients where tikanga Māori has been considered by our senior courts, share their knowledge of tikanga being part of law of Aotearoa New Zealand as part of the evolutionary process of our modern society.
The Law Society reaffirms its support of tikanga becoming a compulsory subject paper in the LLB degree curriculum effective 2025.
The New Zealand Council of Legal Education (Council) consulted in 2021 on its resolution that Te Ao Māori concepts, including tikanga Māori, would be taught in each university as a core law subject within the Bachelor of Laws. This consultation involved the judiciary, law schools, professional associations, and student associations. Following that consultation, the Council resolved that Māori law and tikanga should be a compulsory subject and further consulted on this in 2022. The Law Society supported the proposal, and the Council reported ‘almost universal’ support for the key proposal.
The Law Society wrote to the Regulations Review Committee asking to be heard should the Committee consider a complaint. The Law Society has been asked by the Committee to respond to the matters raised by the complaint.
On the issue of tikanga being made a compulsory subject in our law schools from 2025, it has been so encouraging to see how this issue has galvanised and unified the profession. Not just representative bodies of law practitioners, but most importantly from those who want to learn the law including the NZ Law Students Association. The student voice across the motu is one that very much wants to increase their knowledge of tikanga to better prepare themselves for the modern legal workplace.²
Tai AhuAs our society develops and transforms into a modern, multicultural nation, there is a need to ground our vision of law in something transcendental that unifies and speaks to all of us.
An Anglocentric view of what law is, is myopic in a contemporary context and does not serve our local circumstances all of the time. Consistency and predictability in application is an essential element in the law, and tikanga delivers on both of these elements. As a source of law, tikanga is well established to improve and develop the law in Aotearoa.
At the heart of tikanga is that it provides legitimate responses to current circumstances. To take one example in tikanga, there is the well-known and accepted practice of rāhui. When a rāhui is placed on say a body of water, it is to protect and preserve supply of fish stocks or serve some other protectionary or practical purpose. People increasingly know and respect this. It does not always require the explicit sanction of state law. They understand it and adhere to the rules of the rāhui because the purpose is reasonable, legitimate and widely accepted response to an issue.
In such examples we see tikanga in our everyday settings. It is all around us and has provided a framework of regulations, principles, and customs of social order for centuries pre-dating colonisation.
With such an established structure, tikanga has a deserving place in our law as a source for consideration alongside English law. Importantly, whether and how tikanga applies is contextual. An example of this is Doney v Adlam [2023] NZHC 363 (HC) where Harvey J considered that tikanga also emphasised personal responsibility and accountability of the respondent, which is well supported by the principles of tikanga. Such cases help determine the application of tikanga and offer the guidance of our senior courts to help reconcile what can at times be a clash between the laws of Kupe and Cook.
Tikanga is being further explored and applied to a number of areas of the law, notably in employment law. Here we see an area of law that is based on principles of good faith, fairness and being reasonable. Such principles are also found in tikanga which has much to do with being fair and reasonable.
To this end, tikanga already has secured its place in the practice and application of the law. Drawing on the analogy referenced by our own Honourable Justice Joseph Williams, law may be seen as a fabric or tapestry.
"We see tikanga in our everyday settings. It is all around us and has provided a framework of regulations, principles, and customs of social order for centuries pre-dating colonisation"
Viewing law as a tapestry requires us to look closer at the threads that make up the tapestry. Some parts will fray, some will start to get tattered. The fabric will be used for different purposes that will change over time. As a tapestry that morphs over time and circumstance, so too does our law. Just as English law is subject to the circumstances of the day, so too is tikanga.
The development of climate change law using tikanga as a source can be most recently seen in Smith v Fonterra where tikanga principles helped frame a potential new tort.³
Working in partnership with the general law, the consideration and relevant application of tikanga provides New Zealand with a unique framework to develop the common law and the considerations around it that better meet the needs of our people and place.”
John Billington KC“My view of teaching tikanga as a compulsory subject is that it is embedded in New Zealand law, not only by reason of judgments of the superior courts, but also because it is frequently referred to in legislation. For these reasons law schools would be failing if they did not require it as part of the degree course. Not every subject taught at law schools is later used in practice, but that does not mean it should not form part of the basic understanding of a student aspiring to join the legal profession. For barristers, both in civil and criminal practice, knowledge of tikanga is, and will be, an essential part of their knowledge base.”
Kingi Snelgar with wife Chloe Manga“As the first law of Aotearoa, the application of tikanga in colonial Aotearoa has seen chequered success over time, that has mostly reflected the social mores of the day.
While consistent application and understanding of tikanga still has some way to go, we have made exceptional headway with the guidance of our senior courts.
In reconciling certainty as to when tikanga may apply within, or alongside, the common law, we already have a number of practices and protocols in place to assist with the interpretation and application of tikanga. One such resource is the 2023 study paper from Te Aka Matua o te Ture Law Commission on tikanga. The paper maps tikanga as a system of law and looks at the interface between tikanga Māori and the common law with a view to providing a framework for engagement. Other avenues in the pursuit of reconciling the clash of values systems in New Zealand’s legal duopoly include the Māori Appellant Court which is encouraged to look toward where there is uncertainty as to the application of tikanga.
It is also important to understand that Aotearoa New Zealand is not the only country grappling with the interface of indigenous or first nation laws in colonial systems. Canada is another example of a Commonwealth country that is also evolving its legal framework in this regard.
In considering the application of tikanga I do urge the profession to seek out the knowledge and counsel of tikanga experts, of which there are many throughout the country. This not only provides the required knowledge for considering when and where tikanga should be applied in law, but also protects the taonga that is tikanga under Article Two of the Treaty of Waitangi.
There is also a cautionary tale to the carte blanche application of tikanga in so much as this has the potential to lead to the misappropriation of culture and in doing so jeopardise the authenticity and mana that is at the heart of tikanga. This is why it is so important to bring the teachings of tikanga into modern legal studies throughout our law schools. Greater understanding and knowledge is an essential part of our journey as a progressive and multicultural nation.
There is also a commercial driver as the Māori economy continues to grow and with it the exponential growth of the consideration and willingness to apply tikanga to a range of legal matters. With this in mind, upskilling our law students and new lawyers on tikanga serves to future-proof the profession in an increasingly diverse and multi-cultural Aotearoa.
This also flows into the areas of law that tikanga and Te Ao Māori apply. No longer just the domain of the likes of land laws and resource management issues, tikanga is now a consideration across many areas of the law including employment, estates and family law. This highlights the importance for the teaching of tikanga in our law schools to better equip practitioners across the spectrum of the profession in diligently representing clients on matters that may necessitate an understanding of tikanga.
With tikanga pre-dating colonial law by some six hundred years, it is fair to say that tikanga is a well-established system and remains intrinsically woven into the values of Aotearoa. In keeping with evolving social norms, tikanga already forms aspects of interpretation of New Zealand law that we see in our common law.
As a profession we are becoming more adept in the application of tikanga through knowledge and recognising expertise in this area. Therefore, it is in keeping with the development of the profession that our new lawyers enter the profession with the relevant knowledge to serve the clients and communities they engage with.”
Paul Beverley“Our Māori law practice is very important to us at Buddle Findlay and clearly an understanding of tikanga Māori is central to that practice. We primarily support the Crown and Crown entities, local government and businesses that are seeking to build strong and enduring partnerships with Māori. Our experience in the large law firm environment is that an understanding of tikanga Māori is also a key competency for many other areas of our legal practice, including environmental, property, employment, commerical, litigation, and public law.
The ability to understand and respect tikanga Māori is not a ‘nice to have’ but is critical for all of our lawyers. Strong and effective partnerships with Māori are a key driver for many of our clients and they expect our lawyers to be able to support them to work successfully through those processes. That is not to say our lawyers are expected to be experts in tikanga Māori (clearly we won’t be). We should know enough to respect tikanga Māori, to pause and ask the right question, to be aware of what we don’t know and where to go for that expertise.
"Developing an understanding of tikanga Māori and the ability to work effectively with Māori is a critical skill for all lawyers to have in our contemporary legal environment"
I believe that developing an understanding of tikanga Māori and the ability to work effectively with Māori is a critical skill for all lawyers to have in our contemporary legal environment, in the same way as the necessary skills in public, contract or property law. We have observed the importance of that recently in our work on large commercial and property transactions, law reform processes and in environmental and public law litigation, where tikanga Māori has been central to those processes.
We are in a highly dynamic period in terms of tikanga Māori, te Tiriti o Waitangi, customary law and our constitutional arrangements, including the significant developments on tikanga Māori emanating from our senior Courts. We need our future lawyers to leave law school equipped with the tools to succeed in this evolving constitutional and legal landscape.”
Isaac HikakaI consider myself as fundamentally a ‘black letter’ lawyer, and the recognition of the place of tikanga Māori in our law is wholly consistent with that approach. As has been recognised by multiple cases, tikanga Māori has been in our society and legal system for a very long time and has a long history of being considered in law. It is not foreign to the common law method, nor is there anything radical about the rise of tikanga Māori, and bringing consideration of tikanga Māori, into judgments.
To some extent the recognition of the role of tikanga is similar to the ways in which the common law over time has recognised the remedies and influence of equity, or of human rights. To my thinking, the teaching of tikanga recognises that development of the law and will without doubt produce better lawyers. A baseline paper that teaches the principles of tikanga will serve to empower students by equipping them with a wider range of tools to advance client interests, and with knowledge of how to appropriately use those tools. The more you have at your disposal as a lawyer, the better you will be at advocating outcomes for your client whilst retaining the integrity of the rule of law.
If all law students have a baseline understanding of tikanga, they will be better equipped to ensure that tikanga (and thus the law) is not misused. Tikanga is not to be considered with a ‘one size fits all’ approach. Concepts that underlie tikanga may be superficially appealing in a range of cases, but they will actually only be properly applicable in a more narrow band. Just as compulsory papers addressing equity highlight to students that the ‘clean hands doctrine’ does not mean anyone who has done an arguable wrong must be denied a remedy, addressing tikanga in law school could prevent the superficial attraction of, say, whanaungatanga being deployed in a similar way.
It is also worth remembering that recognition of customary systems in the common law is not unique to New Zealand. In my practice I act in cases throughout the Pacific where the application of similar concepts is very much a part of the legal system. In the Cook Islands akono’anga Māori operates consistently with the rest of statute and common law. So too does the fa’a Samoa in Samoa. From trust disputes, fiduciary duty questions, electoral law, environmental assessments and more the recognition of customary practices such as tikanga means the tapestry of the law is woven in richer colours, for results that promote better justice.
Fundamentally, there is more that unites us than divides us as peoples across the world. The development of the recognition of tikanga Māori as a living and active part of the law should not be viewed as a threat to anyone. Rather it will assist all those who are subject to and seek the protection of the rule of law – from individuals to larger entities – and follows a long history of development of the common law.”
New Zealand Law Students’ Association (NZLSA) President Tom Simmonds issued a supporting statement on the topic of compulsory inclusion of Tikanga Māori in legal education. The Association represents the interests of over 9,000 law students and draws on the NZLSA 2023 National Education and Wellbeing survey conducted in collaboration with the College of Law. Survey results confirmed 85% of law students agree that Te Ao Māori and Tikanga Māori play an important role in their (law) degree.
NZLSA states, “Tikanga Māori has been recognised as part of New Zealand law by the Supreme Court and is frequently referred to in Acts of Parliament. Tikanga Māori also routinely informs modern legal procedure, including in dispute resolution. Given its importance across our legal system, law students need to have a firm grounding in tikanga to be best prepared for legal practice.”
Māmari and daughter at the 2023 regional school kapa haka competition“Since 2021 Te Herenga Waka Victoria University has integrated elements of tikanga Māori law into its teachings to first year law students. Where relevant, tikanga teachings have added a local dimension and context to our law students’ journey. From next year, Te Herenga Waka will deliver the NZCLE directive for law students from Te Kawa a Māui faculty of Māori Studies who hold mana in this sphere.
The objective of including the teachings of tikanga in the LLB curriculum is not to create tikanga experts from law students, far from it, but rather to engage in the development of the curriculum just as our law, society and indeed tikanga develops over time. It is important that our law students be able to adapt to the circumstances that they will find themselves in out of law school. Our job as educators is to equip them with a set of skills to enable them to solve problems. It is not about making content experts out of our students; it is about their learning being relevant to the changing world they will find themselves in.
This evolutionary process is nothing new to society and Aotearoa New Zealand. We only have to look to the revitalisation of te reo Māori. As a part of that revitalisation te reo Māori is becoming normalised throughout the New Zealand vernacular and also has a clear presence in legislation.
"Our challenge as educators is to teach our law students with integrity, how to work with tikanga Māori and in a way that does not interfere with the natural process of development of tikanga nor exploit its vulnerability"
Positive as this trajectory may sound, it is important that our enthusiasm is applied with some caution that protects against distortion, be it of language or in the application of the principles of tikanga. Just as legal English is specialised when compared to English used in the community, so local and regional nuances are also in play when it comes to te reo Māori and tikanga principles and practices. This enables communities to be left alone to develop their own systems and content in accordance with rangatiratanga.
Just as te reo Māori is becoming normalised across business, organisational, educational and social spheres, Māori law has some facets that have already become normalised in contemporary Aotearoa. A very visible example is the modern and widespread practice of rāhui; incorporating the principles such as mana and tapu. We can understand what a rāhui is and how we should respond to it without having to exploit the hāpu-specific mātauranga used in establishing that rāhui.
To this effect, we could rightly say tikanga Māori is a system to regulate behaviours and society is experiencing a renaissance like that of te reo Māori. Our challenge as educators is to teach our law students with integrity, how to work with tikanga Māori and in a way that does not interfere with the natural process of development of tikanga nor exploit its vulnerability.
Rāhui also offers an example of where tikanga intersects with contemporary law in Aotearoa through legislation such as the Fisheries Act. There is already a place for Māori law and the general legal system to operate in simpatico and this is what I would describe as a ‘net positive’ for Māori.
Like every legal system worth its salt, there is a way of dealing with proportionality, reasonableness and certainty of the law. Tikanga is no exception to holding these attributes. In addition, if you scratch the surface of any legal system, you will also find a spiritual base of connection; the most familiar of which might be the law of negligence whose neighbour principle is straight out of the New Testament. We might also look to the development of human rights law that assumes the inherent value of a human soul.
What we are seeing with the development of tikanga as a dedicated, core subject within the LLB degree curriculum is a continuation of our learning journey along the same lines as the recent changes to the secondary school history curriculum.
What this move does not do is in any way threaten the unitary state, but rather, develop equity as a mediator of the common law. This is already being recognised by our senior courts with the most notable example being in Ellis4 where the concept of mana was explored and held as being a value for all of New Zealand. Likewise, we already see the exercise of mana in employment law where the very principle of contracting a good faith relationship means upholding the mana of each party and respecting the tapu of individuals.
Ultimately, I would want to see Māori becoming more confident and the use of our legal systems being implemented across the network of 1500 marae sites throughout the country. This dares us to imagine a future legal environment that integrates tikanga Māori as being normal, practical and functional in its process. The work being done now is laying the building blocks of our future.”
The New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture, supports legal education for law students and lawyers in Te Ao Māori, including tikanga.
In July 2021, our Association was consulted by the New Zealand Council of Legal Education on the inclusion of teaching on Tikanga Māori in the legal education curriculum. We expressed our support for this at the time. We continue to do so.
We also support the views of Te Hunga Rōia Māori o Aotearoa | The Māori Law Society, about the necessity for this addition to law students’ legal education.
Graduates of our law schools need to have a firm grounding in the statutory frameworks and case law that incorporate tikanga. Tikanga is also recognised as an important area of continuing professional development for lawyers in practice and this training is well attended.
We encourage interested lawyers and members of the public to read the September 2023 Study Paper He Poutama (NZLC SP24) from the Law Commission, Te Aka Matua o te Ture, produced under the leadership of the Hon Justice Whata, Commissioner of the Law Commission.
Ko te manu e kai ana i te miro, nōna te ngahere.
Ko te manu e kai ana i te mātauranga, nōna te ao.
The bird that eats the miro berry owns the forest.
The bird that feasts on knowledge owns the world.
Supporting organisations
The following organisations have publicly expressed support for tikanga as a compulsory subject:
- Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ)
- Asian Legal Network
- Auckland Women Lawyers’ Association
- Criminal Bar Association
- Defence Lawyers Association of New Zealand
- Equal Justice Project
- New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture (NZBA)
- New Zealand Law Society Te Kāhui Ture o Aotearoa
- New Zealand Law Students’ Association
- Otago Women’s Law Society
- Pacific Lawyers Association
- Te Hunga Rōia o Aotearoa
- Wellington Women Lawyers’ Association