Tikanga Māori

  1. The centrality and importance of Māori beliefs and values, as expressed through tikanga Māori, has received growing recognition in modern New Zealand law. Tikanga, as an expression of Māori customary values and practice, brings recognition of Te Ao Māori, a Māori world view, and depth to the understanding of cultural values that underpin the law. Te Tiriti o Waitangi316 (the Treaty) recognises the obligations and the relationship between the Crown and Māori as tangata whenua. It values indigeneity and upholds a set of rights that the indigenous people ought reasonably to expect to exercise in modern times.317

  2. The Treaty also represents the bringing together of different world views: that is, English law, based on individual rights of self-determination and non-interference, with traditional Māori values (tikanga) such as self-determination – tino rangatiratanga – concerned with collective, not individual, interests.318 The Treaty processes have given Aotearoa/New Zealand the ability and experience to respect these differences in a pluralistic society, by providing “a plumb line for values and respect for tikanga Māori,” as a basis for new legal frameworks. 319

  3. Justice Joseph Williams describes tikanga in this way: 320
    The system of law that emerged from the baggage Kupe’s people brought and the changes demanded by his descendants by the land itself have come to be known as tikanga Māori: ”tika” meaning correct, right or just; and the suffix “nga” transforming “tika” into a noun, thus denoting the system by which correctness, rightness or justice is maintained. That said, tikanga and law are not co-extensive ideas. Tikanga includes customs or behaviours that might not be called law but rather culturally sponsored habits. (Emphasis added)
  4. In Takamore v Clarke,321 a case involving a burial dispute between Mr Takamore’s iwi and his partner who was executor of his will, the Supreme Court held that “Māori custom according to tikanga is ... part of the values of the New Zealand common law”.322 However, when considering the “executor rule”, the personal representative had the power not to acquiesce to tikanga.323 One difference between the common law and tikanga in burial disputes concerns the decision-making process itself. Under common law, the burial decision is made by a single person, the executor. In contrast, tikanga facilitates and encourages discussion and debate over the place of burial. The emphasis is on collective discussion in deciding where the deceased will lie. The force and length of discussions often reflects the mana of the deceased.324

316 Treaty of Waitangi 1840.

317 M Durie “Universal provision, indigeneity and the Treaty of Waitangi” www.victoria.ac.nz/law/research/publications/vuwlr/...3.../durie.pdf.

318 2015 is the 800th anniversary of the Great Charter: the Magna Carta. It is also the 175th anniversary of the signing of Te Tiriti o Waitangi, described, both in the 1840s and recently, by the Chief Justice, as the “Māori Magna Carta” in S Elias “The meaning and purpose of the Treaty of Waitangi” Hui-a-Tau Conference (Waitangi, NZ 4 September 2015).

319 Submission to the Law Commission from the Public Issues Network of the Methodist Church of New Zealand, among many other submitters on tikanga Māori and the proposed new legal framework in Death, Burial and Cremation, A New Law for Contemporary New Zealand (NZLRC, R134, October 2015) at 206.

320 J Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) Waik L Rev at 1.

321 [2012] NZSC 116, [2013] 2 NZLR 733.

322 Takamore v Clarke, at [94], Elias CJ.

323 Takamore v Clarke, at [152] and [164]-[165]. The common law provides that personal representatives have a right and duty to dispose of the deceased’s body, taking into account cultural considerations, including tikanga where relevant. However, the executor rule was confirmed by a majority of only three out of five members of the Supreme Court, with two members concluding it did not form part of New Zealand’s common law. This indicates that there may be different views about the continued appropriateness of this rule in burial disputes in modern circumstances. See Law Commission, The Legal Framework for Burial and Cremation in New Zealand, A First Principles Review, Issues Paper 34, 2013 at 17. It has been recommended that the current Burial and Cremations Act should be repealed and replaced by new statutes that reflect the basic principles of dignity of the deceased, recognition of tikanga Māori, freedom of religion and belief, and legislative certainty and accessibility. Law Commission, above n 319.

324 Law Commission, above n 319 at 18.

  1. Not only is tikanga recognised in the evolving common law but also in legislation. Tikanga is routinely defined in statute as “Māori customary values and practices”.325 In some instances, tikanga has acquired the status of a legal principle; for example, in the Resource Management Act 1991, decision-makers must have regard to the concept of kaitiakitanga (guardianship, as understood in accordance with tikanga).326 The reasoning processes applied by the Environment Court takes into account these values and traditions in reaching a decision, by way of cultural relativism, respecting that each culture has its own value-laden system of traditions and beliefs.327

  2. There is ongoing debate and discussion as to the precise status of tikanga at common law and within the legal system.328 Creating a “space” for tikanga alongside legal certainty and individual autonomy is a challenge for policy and law-makers.329 As Justice Christian Whata, speaking extra-judicially, says, “The real challenge is how the tikanga, like the Treaty, might permeate the law”.330
Whakawhanaungatanga – a platform for supported decision-making
  1. One of the core values embedded within tikanga that aligns with supported decision- making is the relational notion of kinship, “whanaungatanga”. In traditional Maori society, the individual was important as a member of a collective.331 The individual identity was defined through that individual’s relationships with others. The kinship relationship is based on whakapapa, which can be translated as a person’s genealogy. As Justice Joseph Williams explains: 332
    Of all the values of tikanga, whanaungatanga denotes the fact that in traditional Māori thinking relationships are everything – between people; between people and the physical world; and between people and the atua (spiritual entities). The glue that holds the Māori world together is whakapapa or genealogy identifying the nature of relationships between all things.

    Whanaungatanga is ... the idea that makes the whole system make sense – including legal sense.333
  2. A second important concept of tikanga in this context is “mana”. In the decision-making context, mana ensures that individuals, especially elders, are accorded dignity and respect.334 Mana is a very powerful concept because respect for an individual may be at the cost of collective advantage. It is not so easy in a tikanga decision to take away the mana of decision- making even if the whānau want to; for example, where an elder has stated a preference to stay living in her home when the whānau believes the support of hospital care is needed.335

  3. “Whakawhanaungatanga”336 refers to the process of bringing people together and fostering connections between people. The concept recognises the importance of the process of engaging with people through establishing relationships and relating well to others, by:
  • whanaungatanga: making a connection and understanding relatedness to others; and
  • mana: upholding dignity for both personal and whānau integrity.

325 A Somerville “Tikanga in the Family Court – The Gorilla in the Room” (2016) NZFLJ (in print). Currently, there are statutory definitions in 43 Acts of Parliament and 79 Acts include the word “tikanga”, Appendix 1.

326 Resource Management Act, s 7. Kaitiakitanga as understood in tikanga denotes guardianship and is distinct from the narrower pākehā concept of ”stewardship” which is separately defined in s 7(aa). Māori values appear in ss 6, 7 and 8 of the Resource Management Act 1991 and are matters of national importance.

327 See for example, Ngati Hokopu Ki Hokowhitu v Whakatane District Council 9 ELRNZ 111, Judge JR Jackson, where the “rule of reason” approach was applied with respect to the relationship (whanaungatanga) of Māori with Māori waahi tapu (sacred places) at 123, and discussion of cultural relativism in this context at 125.

328 N Coates “The Recognition of Tikanga in the Common Law of New Zealand” (2015) 1 NZ L Rev 1.

329 Law Commission, above n 319 at 19.

330 CN Whata, High Court Justice “Evolution of Legal Issues Facing Māori” (Māori Legal Issues Conference, Pullman Hotel Auckland, 29 November 2013) at 25.

331 This notion is not unique to Māori. Email communication with Dr Barry Smith (Chair of Health Research Ethics Committee, Te Rarawa and Ngāti Kahu) regarding kinship and supported decision-making to A Douglass (21 December 2015).

332 J Williams “He Aha Te Tikanga Māori” (unpublished paper for the Law Commission, 1998) cited in Law Commission Māori Custom and Values in New Zealand Law, March 2001, Wellington. Study Paper 9 at 30.

333 Williams, above n 320.

334 Interview with Justice Joseph Williams (Wellington, 10 December 2015). Mana is the source of rights and obligations of leadership. Mana is defined broadly as “a key philosophical concept, combining notions of psychic and spiritual force and vitality, recognised authority, influence and prestige and thus power and ability to control people and events” in R Benton (ed) Te Matapunenga: A Compendium of references to the concepts an institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 154.

335 Ibid.

336 The derived causative with the prefix whaka denotes the application of, to make/do.

  1. Whakawhanaungatanga describes this process of providing support and help in a broad sense by allowing the “blood links” beyond family to become an expression of the range of responsibilities and rights. Smith says: “As Māori, we do this (whakawhanaungatanga) well”.337

  2. Supported decision-making processes that recognise whanaungatanga and mana have an obvious place in the Family Court. As observed by Judge Annis Somerville:338
    Whanaungatanga is an integral part of tikanga in the Family Court, incorporating concepts of societal relationships and the rights and obligations that are inherent in them. These concepts are fundamental to the working of the Family Court.
  3. The involvement of families and support for whānau, hapū and iwi in Family Group Conferences (FGCs) under the Children, Young Persons and their Families Act 1989 (CYPF Act) is recognised as one of the more innovative aspects of the Family Court.339 In this decision-making model, families have a collective imperative to find solutions for the care and protection of children. Yet surprisingly, neither tikanga nor whanaungatanga is defined or referred to in any statutes used in family law.340 There are specific Māori cultural considerations recognised under mental health law, is also under the jurisdiction of the Family Court.341 However, the extent that the cultural considerations in the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT) Act) are operationalised is unclear and there is no commonly accepted standard of practice.342
Tikanga and diversity
  1. Respecting the needs, values and beliefs of Māori does not mean that a pan-Māori perspective exists, as expressed in the question, “whose tikanga?” There is rarely one single viewpoint representative of Māori concerns, any more than there is a single ethical or religious viewpoint in any community. Moreover, there are examples in the development of law and policy in New Zealand where tikanga has shaped non-Māori views.343 Any legal framework must accommodate cultural diversity in New Zealand’s pluralistic society, as well as the need to recognise the rights and needs of Māori as tangata whenua.

  2. The positive obligation to recognise relationships of support in the CRPD sits comfortably with tikanga, and the process of engagement with Māori through whakawhanaungatanga. New Zealand has a unique opportunity to enrich the discussion in a review of the law by ensuring these cultural influences are taken into account and given status in law as an approach to supported decision-making.

337 Interview with Barry Smith, QSM: PhD, Chair of the Health Research Council Ethics Committee, Te Rarawa and Ngāti Kahu (A Douglass, December 2015). Bishop defines whakawhanaungatanga as a process by which relationships are generated and maintained through the identification (via culturally appropriate means) of linkages, engagement and connectedness and, on this basis, a commitment to other people and their welfare and well-being: R Bishop Collaborative Research Stories (Dunmore Press Ltd, Palmerston North, 1996).

338 A Somerville, above n 325.

339 Children Young Persons and Their Families Act 1989, s 5. The Care of Children Act 2004 has been criticised for taking a too individualistic approach to issues of care and protection. It makes only passing reference to Māori values and leaves potentially a more confused understanding of tikanga for the guardianship of children. See B Atkin “Harmonising family law” (2006) 5 NZFLJ 140 at 141.

340 A Somerville, above n 325. For an example in child case law cited by Judge Somerville WH v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-007415, 11 September 2008, Courtney J. Another example of tikanga, and the inclusion of collective imperatives alongside valuing individual autonomy, are the Ngā Kooti Rangatahi, the Youth Courts held on marae (meeting places).

341 The Mental Health (Compulsory Assessment and Treatment) Act 1992 makes special provision for “proper recognition” of whānau, hapū and iwi under ss 5 and 65.

342 H Elder and R Tapsell “Māori and the Mental Health Act” in Dawson and Gledhill (eds), above n 92 at 249. See also J Baxter, T Kani Kingi, R Tapsell and others “The prevalence of mental disorder among Māori in Te Rau Hinengaro: The New Zealand Mental Health Survey” (2006) 39 Aust NZ Psych 401.

343 For example, the recognition of the importance of whakapapa and the right to know your genetic origins in assisted reproductive technology has arguably led to a more open attitude to knowledge of genetic parentage in New Zealand than exists in other countries: K Daniels and A Douglass “Access to Genetic Information by Donor Offspring and Donors: Medicine, Policy and Law in New Zealand” (2008) 27 J Med Law 131.

  © 2020 Alison Douglass