The role of tikanga within Aotearoa New Zealand’s legal system remains a focal point of legal and political debate. In 2025, the Minister of Justice signalled his concern that New Zealand is developing a “bespoke” and “unpredictable” legal system because of application of tikanga by the Courts [1] and indicated the Government’s willingness to legislate over court decisions where necessary.

We have already seen this in action with the enactment in October 2025 of the Marine and Coastal Area (Takutai Moana) Amendment Act, which reset (with some retrospective effect) the statutory test for holding customary marine title (which included reference to holding customary marine title in accordance with tikanga) to “undo” an otherwise broad interpretation of the test by the Courts [2].

Judicial recognition of tikanga has been careful, principled, and incremental. It is anchored in the same legal standards of fairness, reasonableness, good faith, and proportionality that underpin all judicial reasoning" [3].

But experts in tikanga and Aotearoa New Zealand law reject claims of unpredictability, emphasising that tikanga is principled and discernible through precedent, evidence, and expert testimony. Its adaptability is a strength, not a flaw.

We see this view being reflected in the quiet ongoing momentum in the Courts towards recognition of tikanga as a New Zealand legal norm, despite the challenges. Tikanga is now applied as a matter of course “where relevant” in the employment and resource management jurisdictions. The Supreme Court (on an appeal from the Environment Court) has recognised that eminent mātanga (experts) in tikanga, like experts in any system of law, may be called upon to apply familiar and accepted tikanga principles to new facts and test the appropriateness of that application through argumentation – and that through this process different experts will have different perspectives. The Courts may be called upon (and are) choosing which expert evidence may best be reconciled with the overall evidence in a case [4].

However, recent decisions show the general Courts are integrating tikanga more cautiously, establishing boundaries around its application beyond the “relevance” threshold and need for clear expert evidence. Judges are continuing to exercise care over their place in determining and applying tikanga even when plainly relevant to a dispute. Business, government and not-for-profit organisations remain likely to be engaged in disputes involving the proper role and application of tikanga – if any – in a wide range of circumstances. Those that are proactive about understanding tikanga as a system of principles with their own legal force will be best placed to respond when the need arises.

The appropriate forum for determining and applying tikanga in dispute resolution among iwi, hapū and whānau Māori may not be the Courts – at least not in the first instance

One such boundary is emerging in circumstances where tikanga is clearly the controlling body of law (it is clearly “relevant”), but there is a point at which a court ought to consider ‘staying’ the proceeding (i.e. putting it on hold for a period of time) where it is satisfied there is an alternative more appropriate forum available to resolve the dispute for those parties – such as through a tikanga-based dispute resolution process mandated under an iwi/hapū trust deed.

This was the case in Hata v AttorneyGeneral [5], a case challenging decisions made by the Crown and the pre and post settlement trusts relating to the Treaty settlement for eastern Bay of Plenty iwi Te Whakatōhea. The applicant argued certain decisions were inconsistent with the hapū tikanga of one of six hapū of Te Whakatōhea, Ngāti Irapuaia o Waioweka (Ngāti Ira). Ngāti Ira sought forwardlooking declarations against the Crown and Te Tāwharau Trust (the post settlement governance entity of Te Whakatōhea), to regulate any further dealings between Ngāti Ira and those parties by defining the obligations of them both based on Ngāti Ira’s tikanga as law. Ngāti Ira also sought declarations against Te Tāwharau that it had no basis in tikanga to purport to represent Ngāti Ira, together with a direction under s 127 of the Trusts Act “restraining Te Tāwharau from making further decisions which purport to represent or bind Ngāti Ira…”.

Justice Isac declined the declarations and identified four themes from recent authority about tikanga as law:

• Context matters: Tikanga loses meaning when described “in the abstract” [6].
• Integrated principles: Tikanga is a weave of values; principles interact and may conflict [7].
• Process and substance: Tikanga governs both outcomes and decisionmaking; court intervention may itself breach tikanga unless tikanga-based resolution is unfeasible [8].
• Preserve tikanga’s autonomy: Courts must avoid undermining tikanga institutions or their mana. While acknowledging the flexibility of the common law and the bi-jural development taking place in Aotearoa, the Courts should be careful not to impair the operation of tikanga in its own right [9].

Justice Isac noted stays may be appropriate where tikanga processes exist, but not where none are available, urgency exists, or resolution through tikanga is unrealistic. Courts may also weigh a party’s refusal to engage in tikanga processes when granting relief [10].

Tikanga is no more amenable to abstract declaratory relief than any other area of law

Another limit on the courts’ application of tikanga is the orthodox approach to declaratory relief, reinforced in the context of tikanga-based declarations.

In Delamere v Minister of Immigration [11], Tuariki Delamere, an experienced immigration advisor and former Minister of Immigration, sought judicial review of the refusal by Immigration New Zealand (INZ) to reconsider immigration policy to take account of tikanga principles of whanaungatanga (kinship or a sense of familial connection and relationships) [12] and manaakitanga (to care for a person’s mana and wellbeing) [13]. Mr Delamere argued that INZ was required to consider relevant tikanga principles when it makes visa decisions. He claimed that INZ was not giving sufficient consideration to the integrity of whānau in their decisions, and sought declarations that would compel INZ to review its immigration instructions and decision-making processes to ensure they align with tikanga. INZ maintained that tikanga could be considered on a case by case basis where it was relevant.

Justice Boldt struck out the application, finding that Mr Delamere was not seeking to challenge a particular decision or exercise of public power, making his claim untenable. The Court did not therefore address whether INZ was engaging with tikanga in an appropriate manner, but noted the Supreme Court decision in Ellis [14] (which confirmed that tikanga Māori is properly regarded as a source of law in Aotearoa New Zealand) does not require wholesale revision of existing law and policy.

Ultimately, the Court confirmed it can only apply tikanga to specific factual circumstances, not issue broad or abstract declarations.

Tikanga may play a role in developing the law, but the Court’s decision does not mean clear and settled law must change” [15].

The Courts will not determine the tikanga of one iwi or hapū prevails over the tikanga of another iwi or hapū – it will only evaluate the strength of relationships in particular places and points in time

A further now well established boundary around the Courts’ engagement with tikanga is a clear awareness that it is not the role of the Courts to give primacy to the tikanga of one iwi or hapū over another (as opposed to the expert evidence of one mātanga over another). Courts may only assess the relative strength of different iwi/ hapū relationships with each other and the environment in a specific rohe (area) and at a particular time.

Primacy of tikanga is an issue that has arisen primarily in Resource Management Act case law where multiple iwi or hapū claim ancestral connections to land subject to development. But it could also arise in commercial disputes involving Māori trusts, land transactions, or insolvency where parties whakapapa to different iwi or hapū.

In 2025, in Ngāti Whātua Ōrākei Whai and Maia Ltd v Auckland Council [16], the Environment Court considered conditions imposed by the consent authority on a grant of resource consent. The Court was asked to consider statutory obligations to Māori in circumstances where there are several hapū or iwi claiming relationships to the area being developed (in this case, Auckland’s Westhaven’s marina).

The Environment Court confirmed that only the High Court and Māori Land Court can declare tikanga-based rights in state law (per the High Court’s earlier Ngāti Maru decision in 2020) [17], but that it could make a finding of the relative strength of iwi relationships with a certain area at a certain time. After reviewing extensive historical material, the Court found Ngāti Whātua’s connection with its ancestral lands and water at Westhaven was stronger in character than others. It stressed this was not preferring one parties’ tikanga over another, but evaluating relationships at a point in time and in a particular area [18].

Relevant to the first limit we have noted, the Court also considered that in this case a hui or other tikanga means of kōrero would be unable to reach a final outcome on how to recognise the tikanga of Ngāti Whātua as “the disputes seem to us to run too deep for that to occur” [19]. They took a “tentative but quite firm view that [it would] need to set final conditions for cultural recognition and mitigation in prescriptive form after input from parties” [20].

Conclusion

Standing back from these emerging boundaries around when and how the Courts will apply tikanga principles in resolution of disputes, some themes for its positive application are emerging from the cases too:

• Judges are keenly aware of the need for care to preserve the integrity and mana of tikanga principles and processes
• Applying tikanga as law can involve ensuring the right forum for resolution, not just applying principles to facts, and
• Where application of tikanga is relevant to resolution of a specific dispute utilising the forum of the Court and there is appropriate expert evidence available for the Court to consider, Judges are increasingly comfortable applying it – including in novel situations reflecting modern life rather than traditional Māori society.

In this context, the judiciary seems likely to be well ready to consider the relevance of tikanga in the formulation of broadly framed tort and equity claims and an assessment for claims of loss and damage to the environment by the time the much awaited Smith v Fonterra case [21] comes back before the High Court (the hearing is currently scheduled to begin in April 2027) [22].

In the meantime, parties to litigation where tikanga principles may be relevant – and we continue to expect to see more of these in 2026 and beyond, and in a wider range of legal contexts – should plan ahead for its impact on both forum and outcome. The Law Commission’s He Poutama Study Paper 24 [23] remains an excellent resource on tikanga and its engagement with state law. It highlights the existing breadth of application of tikanga as part of New Zealand law. Cases since its release in 2023 are continuing that trend.

Footnotes

[1] Hanly, L. (2025, September 27). Justice Minister Paul Goldsmith warns government prepared to remove tikanga Māori from court rulings. RNZ.

[2] The preamble to the Act cites the Supreme Court case of Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka, Ngāti Patumoana, Ngāti Ruatākenga and Ngāi Tamahaua (Te Kāhui Takutai Moana o Ngā Whānau Me Ngā Hapū o Te Whakatōhea) [2025] NZSC 104, which made findings on interpretation of the Marine and Coastal Area (Takutai Moana) Act 2011. The preamble states that the purpose of the amending legislation is to make amendments to provisions of the Marine and Coastal Area (Takutai Moana) Act 2011 to “ensure that they have the effect, and maintain the balance, that Parliament intends”.

[3] Hanly, L. (2025, September 29). Māori lawyers reject Goldsmith’s comments over tikanga Māori court rulings. RNZ.

[4] Sustainable Ōtākiri Inc v Whakatāne District Council [2025] NZSC 158 (12 November 2025) at [194] to [202].

[5] Hata v Attorney-General [2025] NZHC 519.

[6] Above n.5 at [102] to [126].

[7] Te Aka Matua o te Ture New Zealand Law Commission, He Poutama NZLC SP24, September 2023 at [3.16]; Ellis v R (continuance) [2022] NZSC 114; [2022] 1 NZLR 239 at [85] and Statement of Tikanga of Sir Hirini Moko Mead and Professor Pou Temara (SC 49/2019, 31 January 2020 at at [3.9]–[3.10].

[8] Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843; [2023] 3 NZLR 601.at [368].

[9] Above n.7 He Poutama, Part Three, “Future Engagement” at [2].

[10] Hata v Attorney-General, above n.5 at fn 99.

[11] Delamere v Minister of Immigration [2025] NZHC 3008.

[12] Above n.7 He Poutama, Part One, at [3.36].

[13] Above n.7 He Poutama, Part One, at [3.120].

[14] Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239.

[15] Delamere v Minister of Immigration, above n.11, at [15].

[16] Ngāti Whātua Ōrākei Whai and Maia Ltd V Auckland Council [2025] NZEnvC 228; BC202562194 at [9] (Interim decision of the Environment Court as to evidential findings about relative tikanga-based rights, powers and/or authority, as relevant to the discharge of obligations to Māori under the RMA).

[17] Ngāti Maru v Ngāti Whātua Ōrākei Whai Maia Ltd (Ngāti Maru) [2020] NZHC 2768.

[18] Above n.17 at [318].

[19] Above n.17 at [320].

[20] Above n.17 at [324].

[21] By way of reminder, in Smith v Fonterra Co-Operative Group Ltd [2024] NZSC 5 the Supreme Court held (rejecting a strike out application) that tikanga is relevant to consideration of Mr Smith’s claims in tort (in particular public nuisance). The Court said that aspects of tikanga will need to be addressed at trial, in terms of the plaintiff’s relationship with the relevant land and how that may impact on any loss and damage suffered in ways that are not necessarily financial or economic. The case has been referred back to the High Court for determination.

[22] MinterEllisonRuddWatts acts for BT Mining Limited a defendant in the Smith v Fonterra case.

[23] Above n.7.