Kupe's Law

The key principles of the first laws of New Zealand — dubbed Kupe’s Law by Justice Joseph Williams — are widely accepted as: 

• Whanaungatanga or the source of the rights and obligations of kinship; 
• Mana or the source of rights and obligations of leadership; 
• Tapu as both a social control on behavior and evidence of the indivisibility of the divine and profane; 
• Utu or the obligation to give and the right (and sometimes obligation) to receive constant reciprocity; and  
• Kaitiakitanga or the obligation to care for one’s own. 
• Manaakitanga caring and hospitality

These are elements of tikanga Māori — Māori customary values and practices.

See Joseph Williams “Lex Aotearoa: Mapping the Māori Dimension in Modern New Zealand Law” in Robert Joseph and Richard Benton (eds) Waking the Taniwha: Māori Governance in the 21st Century (Thomson Reuters, Wellington, 2021).

Tikanga Māori in New Zealand law

Tikanga Māori generally or particular elements of tikanga Māori (including, but not limited to, the five listed above) are recognised in various areas of New Zealand law.

Below are some examples provided in our commentary, precedents and A-Z products. In certain examples, the principles are brought into the legislation by implication. In others, tikanga Māori generally or specific elements of tikanga Māori are stated in the legislative provisions. Some examples demonstrate the Courts’ consideration of tikanga Māori. 

Criminal Law

A-Z of New Zealand Law - Constitutional Law

• whakamā: the tikanga concept of whakamā is “a unique mitigating factor” in sentencing Māori offenders: Henare v R [2020] NZSC 96 at [9]. See also Henare v R [2020] NZCA 188 at [26]. Whakamā denotes humiliation to the core of one’s being, rendering the offender “inferior, disgraced, disadvantaged”. See A-Z of New Zealand Law — Constitutional Law at [17.5.8].

Adams on Criminal Law

• whanaungatanga: the source of the rights and obligations of kinship

In the context of extradition proceedings in Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597, the Court of Appeal was prepared to take judicial notice of the fact that whanaungatanga is one of the fundamental precepts of tikanga, and indeed Māori society. See Adams on Criminal Law — Evidence at [EA128.02(3)(e)].

• kaitiakitanga: obligation to care for one’s own and mātauranga Māori: Māori traditional knowledge

Implied in s 9(2) of the Criminal Cases Review Commission Act 2019 are mātauranga Māori and kaitiakitanga. Under s 9(2), the CCRC must include at least one Commissioner who has knowledge or understanding of te ao Māori (Māori world view) and tikanga Māori. See Adams on Criminal Law — Procedure at [EJC4.01].

• tikanga Māori: Māori customary values and practices

In Law Commission The Use of DNA in Criminal Investigations/Te Whakamahi i te Ira Tangata i ngā Mātai Taihara (NZLC R144, 2020), a number recommendations were made to accommodate tikanga Māori in the Criminal Investigations (Bodily Samples) Act 1995, including “providing that the purpose of the new DNA legislation includes facilitating the collection and use of DNA in a manner that recognises and provides for tikanga Māori”: see Adams on Criminal Law — Rights and Powers at [CI1.03].

Courts generally consider whānau, community and tikanga when sentencing Māori offenders. Under s 8(j) of the Sentencing Act 2002, where the court is considering the imposition of a sentence having a rehabilitative purpose, it must take into account the offender’s “personal, family, whanau, community and cultural background”. In considering how to tailor the sentence to the background of the offender, the Court may receive submissions on the offender’s personal, family, whānau, community, and cultural background pursuant to s 27 as well as a pre-sentence report under s 26. See Adams on Criminal Law — Sentencing at [SA8.15] and [SA27.02].

Tikanga Māori also has a part to play under s 10 of the Sentencing Act 2002 (Court may take into account offer, agreement, response or measure to make amends). Participation in a marae-based practice may be taken into account in mitigation under s 8(i) and s 10(3), and the court may invite submissions under s 27 before doing so. For example, in Oneroa-Hill v District Court of Tauranga [2017] NZHC 2471 and Oneroa-Hill v Department of Corrections [2018] NZHC 163 hours of mahi (voluntary community work) undertaken on the order of Nga Tapuwai Muriwai Paa Kooti in lieu of unpaid fines led to a reduction of 40 per cent in the hours of community work imposed in lieu of unpaid fines. See Adams on Criminal Law — Sentencing at [SA10.02]–[SA10.03].

Employment Law

tikanga Māori: Māori customary values and practices

Schedule 1B, cl 10 of the Employment Relations Act 2000 states:

“During collective bargaining each party must—

(a)   give thorough and reasonable consideration to the other's proposals; and

(b)   not act in a manner that undermines the other or the authority of the other; and

(c)   not deliberately attempt to provoke a breakdown in the bargaining; and

(d)   where appropriate, consider ways in which they may take into account tikanga Māori (Māori customary values and practices) in the bargaining.”

Environmental Law / Resource Management

• Kaitiakitanga: guardianship or management

Kaitiakitanga is defined in s 2 of the Resource Management Act 1991 as: “the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship”. See Resource Management at [A2.92.01].

• Waahi tapu/wāhi tapu: a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense; and taonga: an object or natural resource that is highly prized

Under s 6(e) of the Resource Management Act 1991, local authorities managing the use, development and protection of natural and physical resources must recognise and provide for the “relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga”. See Resource Management at [A6.11(3)] or Salmon Environmental Law at [RM6.06(6)].

Family Law

These terms are defined (not exactly as below) in the Oranga Tamariki Act 1989, s 2(1):

• mana tamaiti (tamariki): the intrinsic value and inherent dignity derived from a child’s or young person’s whakapapa (genealogy) and their belonging to a whānau, hapū, iwi, or family group, in accordance with tikanga Māori or its equivalent in the culture of the child or young person
• tikanga Māori: Māori customary law and practices.
• whakapapa: genealogy, the multi-generational kinship relationships that help to describe who the person is in terms of their mātua (parents), and tūpuna (ancestors), from whom they descend
• whanaungatanga: relationship, kinship and sense of family connection, obligation, belonging
• whāngai is a term not defined in the Oranga Tamariki Act but is an important word in terms of family law and tikanga Māori; it is so commonly used that it tends to be used without translation, as in the below commentary referred to. It means this:
• whāngai: a traditional Māori arrangement whereby children are raised by someone other than their birth parents — usually a relative, often grandparents.

For commentary, see Family Law – Child Law II “Care and Protection” [NT1.3.03(3)] `(Consideration of the child’s wellbeing, mana tamaiti (tamariki), whakapapa, whanaungatanga and the stability of the extended family).

Cases discussed there and significant to these expressions and concepts are:

• Oranga Tamariki, Ministry for Children v AR [2020] NZFC 4046
• Chief Executive of Oranga Tamariki – Ministry for Children v BH [2021] NZFC 210

Fisheries Law

• tāngata whenua­: people of the land with authority in a particular place
• tāngata kaitiaki or tāngata tiaki: guardians
• rohe moana: defined customary fishing area

Customary fishing rights are guaranteed to tāngata whenua under Te Tiriti o Waitangi – the Treaty of Waitangi and they are reinforced under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Customary fishing takes place in a rohe moana of the tāngata whenua­. There are different customary fishing regulations for different areas and tāngata whenua notify the Minister for Oceans and Fisheries of proposed guardians (called tāngata kaitiaki or tāngata tiaki). The Minister then confirms their appointment. Tāngata kaitiaki/tiaki then set customary fishing rules that are consistent with their customary practices. See Fisheries Law at [Intro.07].

Forms/Precedents

In the realm of forms/precedents there is increasing use of both English and te reo Māori when naming court registries in the heading of documents filed in proceedings. See for example:

• r 5.11(1)(b) and form G 1 in sch 1 of the High Court Rules 2016 (since Sept 2017); and
• r 5.14(1)(b) and form 2 in sch 2 of the District Court Rules 2014 (flagged in May 2021, required from April 2022).

Intellectual Property

A-Z of New Zealand Law - Commercial Law

• kaitiakitanga: obligation to care for one’s own and mātauranga Māori: Māori traditional knowledge

Implied in ss 177–180 of the Trade Marks Act 2002 are mātauranga Māori and kaitiakitanga. Sections 177–180 create and regulate the operation of a Māori Advisory Committee to the Commissioner of Trademarks. Appointees to the Committee must have knowledge of te ao Māori (Māori world view) and tikanga Māori. See A-Z of New Zealand Law — Commercial Law – eCommerce at [14.e.2.4(9)].

A-Z of New Zealand Law - Intellectual Property

• tikanga Māori: Māori customary values and practices and mātauranga Māori: Māori traditional knowledge

The relationship between IP law (including plant variety rights) and tikanga Māori and mātauranga Māori is recognised in Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011). See A-Z of New Zealand — Intellectual Property at [35.2.24.1] and [35.3.15.4].

• kaitiakitanga: obligation to care for one’s own and mātauranga Māori: Māori traditional knowledge

Implied in ss 225–228 of the Patents Act 2013 are mātauranga Māori and kaitiakitanga. Sections 225–228 create and regulate the operation of a Māori Advisory Committee to the Commissioner of Patents. Appointees to these Committees must have knowledge of te ao Māori (Māori world view) and tikanga Māori. See A-Z of New Zealand — Intellectual Property at [35.2.4].

Land Law

• pūtea: in the context of a Māori land trust or incorporation, it is the concept of several people, collectively, filling a basket by contributing communally with money and other assets

Section 212 of Te Ture Whenua Maori Act 1993 provides for the formation of a pūtea trust in relation to Māori land, General land owned by Māori, or shares in a Māori incorporation. A “putea” is a basket of fine woven flax, but in this context the word refers to a common fund. Putea trusts are designed for situations where: (a) excessive fragmentation of ownership through successions has made individual interests uneconomic to administer as separate interests, or the whereabouts of owners is unknown; and (b) there is a desire to pool the income from the land for common purposes. See Land Law at [ML6.03(3)].

• tipuna/tupuna: ancestors

Under s 220A of Te Ture Whenua Maori Act 1993, if the Māori trust land is registered or registerable under the Land Transfer Act 2017, the trustees may direct that the land be registered in the name of tipuna (ancestor), or in the name of the trust itself. See Land Law at [ML6.03(11)(a)].

Local Government

• waahi tapu/wāhi tapu: a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense; and taonga: an object or natural resource that is highly prized

Under s 77 of the Local Government Act 2002, a local authority must, when making a significant decisions in relation to land or a body of water, “take into account the relationship of Māori and their culture and traditions with their ancestral land, water, sites, waahi tapu, valued flora and fauna, and other taonga”. See Local Government at [LG77.01] and following.