In this episode, Partner | Kaiurungi June Hardacre is joined by Partner | Kaiurungi Briony Davies and Senior Associate | Pouarataki Pāhake Mark Calderwood to explore the evolving role of tikanga Māori in Aotearoa New Zealand's legal landscape. They explore what tikanga Māori is, and the increasing integration of tikanga into various legal contexts, with a focus on recent cases and trends.
[00:00:40:22 - 00:02:31:01] Briony starts the discussion by defining tikanga Māori. She describes tikanga as the right way of doing things from a Māori world view. She notes it is often learned and understood through lived experiences and knowledge of tikanga is passed down through generations. She describes it as including principles governing relationships with people, whenua (land), and te taiao (the environment).
[00:02:31:04 – 00:06:55:24] The group discuss some of the values and principles of tikanga including for example kotahitanga, rāhui, kaitiakitanga, and others related to restoring balance (ea). They highlight the Law Commission's study paper ‘He Poutama' as a valuable resource.
[00:06:55:24 - 00:08:18:15] Briony highlights the role of tikanga in the courts. Mark discusses the landmark Supreme Court decision in the Ellis case at the end of 2022, highlighting the increasing relevance and referral to tikanga Māori principles in litigation as part of New Zealand law.
[00:08:18:19 - 00:09:44:05] The group discusses recent trends in application of tikanga Māori in resolving disputes. They talk about the court’s reluctance to allow tikanga-based arguments to be used as a sword or shield for claims in cases where there are clear statutory provisions that apply; and about the importance of understanding the nature of the claim. June provides examples from recent cases involving tikanga in employment and tort contexts.
[00:09:44:07 - 00:13:44:01] They move on to the application of tikanga in resolving disputes. Briony and Mark talk about the increasingly broad application of tikanga across various disputes. They talk about how tikanga has been applied across a range of private law contexts and not limited to cases involving Māori parties. They discuss the increase in tikanga-related arguments and judgments, tikanga considerations in environmental law and judicial review and developing trends in commercial and civil litigation.
[00:19:36:14 - 00:22:00:24] Finally, they delve into key considerations for anyone engaging with litigation where tikanga principles are relevant. They highlight parties should understand the nature of the claim and be prepared for tikanga arguments. Briony says tikanga may fill gaps in the law and be relevant to emerging disputes. The episode concludes by highlighting the significance of understanding tikanga's role in resolving disputes, filling legal gaps, and embracing its principles where relevant.
Information in this episode is accurate as at the date of recording, 12 February 2024.
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Please contact Briony Davies, June Hardacre, Mark Calderwood or our Litigation team if you need legal advice and guidance on any of the topics discussed in the episode.
You can read our full Litigation Forecast 2024 article on tikanga Māori in litigation - The kōrero continues: Recognition of tikanga Māori by New Zealand courts - here.
