National | Tikanga

‘He Poutama’ a hopeful step in the right direction for tikanga and the law

Te Aka Matua o te Ture| the Law Commission has published a paper it says will provide ‘invaluable’ guidance to lawyers, lawmakers and anybody interested in understanding the engagement between tikanga and the law.

Led by former law commissioner, Justice Christian Whata (Ngāti Pikiao, Ngāti Tamateatūtahi), the paper is designed to help people understand what tikanga is and clarify its legal characteristics.

“Because tikanga is tikanga, it’s not just law, it’s a much wider philosophical intellectual construct. It’s much wider than that.

“And then to look at how tikanga is currently being woven into what we call state law and just layering that up through the paper. I think with that level of explanation and clarity, it will bring a lot more acceptance as to the role of tikanga, certainly within te ao Māori, but also more broadly.”

The report was first requested in 2001 by then-Justice Minister Kris Faafoi. It gives those working in the courts and the public sector a principled framework to guide their interactions with tikanga as they develop the common law and write legislation, Justice Whata says.

He Poutama is based on input from experts at the interface of tikanga and legal practice, officials and constitutional and other legal experts, and has been assisted by judicial feedback.

Tikanga in the mainstream

The Law Commission expects a wide range of views on the study, including favourable and less favourable ones, as the topic continually evolves, president Amokura Kawharu says.

Kawharu says tikanga is already having an increased influence on the development of law in Aotearoa, particularly in customary law. But it is making its way into more mainstream elements of law.

“I think what we will see in the future is more of that latter category, where tikanga is looked at as a source of values for the development of the law.”

Whata, who was appointed to the High Court in 2011, says examples of tikanga engaging with law are over 30 years old in relation to the Resource Management Act and environmental rules recognising tikanga Māori while concepts of mana tangata and mana tamaiti have been adopted in the Family Court.

“And we’ve seen it also in what we call public law, the law of the government and how the government interacts with Māori. So we’re seeing tikanga more and more featuring in those spaces.”

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