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A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)
A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)

OPINIONPoliticsMay 9, 2024

Tikanga is the first law of Aotearoa

A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)
A fair legal system honours tikanga and reo Māori (Image: Tina Tiller)

A senior lawyer has filed a complaint about tikanga becoming a required law school module. Law lecturer Carwyn Jones explains what he’s getting wrong.

“…the first law of Aotearoa, a law that served the needs of tangata whenua for a thousand years before the arrival of tauiwi.”

– Ani Mikaere

Law can be understood as a special set of social rules. Different societies adopt different rules to regulate society and develop different mechanisms for creating laws and resolving disputes about the application of those laws. For example, the New Zealand state legal system has a representative parliament that creates new laws and amends and repeals existing laws. It also has a hierarchy of courts that are responsible for the interpretation of laws and the application of laws to specific circumstances. Parliament and the courts undertake their functions by following established processes with reference to key values and principles.

There is another legal system in New Zealand that predates the state legal system and operates alongside it: tikanga Māori. Tikanga incorporates a Māori legal system that has law-making and dispute resolution institutions, which operate according to processes based on Māori values and principles. Māori law has distinctive patterns of authority and decision-making (and constraints on legal authority), particular forms of legal communication, argumentation and reasoning, and distinctive mechanisms for enforcement and remedy, in other words, the full range of mechanisms that we associate with a well-developed legal system that is able to adapt to meet the needs of society in a changing world.

Tikanga Māori is now also recognised as being a source of the common law of New Zealand. New Zealand common law has always been willing to recognise specific tikanga practices, so long as they met the common law test for what constitutes “customary law”. Specific pieces of legislation over the years have also incorporated tikanga concepts, one famous example being the concept of “kaitiakitanga” being used in the Resource Management Act. In the Peter Ellis case, the Supreme Court recognised tikanga as the first law of Aotearoa. As such, the colonial test for recognising customary law does not apply to tikanga and tikanga may be drawn on as a source of law even in some cases where there is no relevant legislative incorporation.

As a source of New Zealand law, tikanga is potentially relevant to a wide range of cases, including, like the Ellis case, where there is no Māori party involved. The New Zealand Council of Legal Education, a professional body made up of lawyers, judges, law school deans, and law student representatives, has determined that “teaching Tikanga is an essential part of legal education given frequent references to tikanga in Acts of Parliament and its acknowledgement by the Supreme Court as part of the law of New Zealand”. From January 1, 2025, the New Zealand legal education curriculum will include requirements for the teaching and assessment of tikanga Māori | Māori laws and philosophy.

A render of the soon-to-open National Centre for Indigenous Laws at the University of Victoria in British Columbia, Canada. (Source)

New Zealand legal professional and educational bodies are not on their own in recognising the need for students to engage with indigenous law if they are to produce graduates who are properly equipped to enter the profession. Canadian law schools have perhaps been leading the way in this area. Many of the most prestigious law schools in Canada, including Osgoode Hall Law School, and the faculties of law at McGill University and the University of Toronto, now have some compulsory indigenous law component within their degree programme. The University of Victoria in British Columbia now offers a programme where students can complete an indigenous law degree alongside a common law degree and they will soon be home to a new National Centre for Indigenous Laws.

Part of the explanation for why these law schools see indigenous law as relevant for all law graduates is because it expands the set of legal tools that lawyers can draw on to assist people to resolve legal issues. These moves also give effect to a 2015 recommendation from the Truth and Reconciliation Commission, which had investigated the horrific abuse within Indian residential schools and, as part of a suite of 94 “calls to action” aimed at both addressing the legacy of that abuse and advancing reconciliation, called on law societies across Canada to ensure that lawyers receive appropriate training and education, including education about indigenous laws.

I taught at the faculty of law at Victoria University of Wellington for 15 years, between 2006-2021. One of the courses that I taught most regularly over that period was a course called Māori customary law. I was never all that keen on the course title because I didn’t think it reflected the full range of law found within tikanga Māori. Like Pākehā law, Māori law includes processes for deliberative law-making, mechanisms for properly mandated bodies to make authoritative statements of law, and procedures for discussing the correct application of law, alongside law which has developed from custom.

Part of the reason that I think it is important to understand tikanga is law is because it draws attention to its foundation of legal principle and reasoning that is characteristic of healthy legal systems. But the course title was inherited from around a decade earlier when I had taken that course as a student in the late 1990s. Teaching Māori law in law schools is hardly new. I was always really interested in the feedback I received from students about this course. Over the first few years that I taught the course, it seemed to be a course that students took because they intended to work in areas of the law that had a particular Māori dimension, like Māori land law, or just because they had a kind of curious interest. However, in feedback, students often reflected on how studying the Māori legal system had enabled them to think more critically about the New Zealand state legal system and gain a better understanding of both systems of law.

Over the last few years that I taught the course, it was clear that students were taking this course not simply as a matter of interest, but because they saw how valuable it would be to their future practice. Feedback shifted to students asking why they needed to wait to near the end of their degree to gain these perspectives and insights. One year a group of students wrote a letter to the dean asking him to consider making the course compulsory because they believed it was one that all students would benefit from. For a long time now, law students have been well ahead of law schools and the profession in terms of understanding the need for law graduates to be able to recognise the first law of Aotearoa.

The New Zealand Council of Legal Education’s decision to require a compulsory tikanga component be included in the LLB curriculum is really just catching up with this hunger from students, with developments in New Zealand law, and with the approach being adopted in similar jurisdictions elsewhere.

For an in-depth examination of the relationship between tikanga and the New Zealand state legal system, see the Law Commission’s recent study paper, He Poutama

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