New Zealand Law Society - Protecting and enhancing tikanga for future generations

Protecting and enhancing tikanga for future generations

Protecting and enhancing tikanga for future generations
Kai at Ōtākou Marae as part of the University of Otago second year law wānanga in 2023

In 2021, the New Zealand Council of Legal Education (NZCLE) decided to amend the regulations prescribing the content of the LLB degree in New Zealand to include teaching and assessment of tikanga Māori. LawTalk speaks to law schools and experts across the motu to see what work is being done already to instil a better understanding of tikanga in the next generation of practitioners.

Will we recognise the laws of England or the laws of New Zealand and if the latter, will we hone our jurisprudence to one that represents the circumstances of the country and shows that our law comes from two streams?”

Twenty-seven years on, there can be no doubt that tikanga in our law is well-established and a pillar of our legal institutions. But what is tikanga, and what is happening at our law schools in Aotearoa New Zealand to fully incorporate it into the modern profession that is evolving across the motu?

According to Carwyn Jones, “Tikanga is the right or correct way of doing things within Māori society.

“It is a system comprised of practice, principles, process and procedures, and traditional knowledge. Tikanga encompasses Māori law but also includes ritual, custom, and spiritual and socio-political dimensions that go well beyond the legal domain.”

These include systems like dispute resolution processes, decision-making authorities with corresponding limitations, and unique and culturally appropriate mechanisms for enforcement and redress. Unlike other, western-centric systems, tikanga is not a static cultural artifact that has remained unchanged since 1840. Similar to robust legal systems, tikanga possesses inherent processes that allow it to evolve based on fundamental principles, historical practices, and practical evaluations of the evolving needs of society.

In essence, tikanga Māori encompasses a comprehensive Māori legal system that encompasses all the components of a fully operational and adaptable legal framework.

Tikanga Māori is referred to as “the primary law of Aotearoa” by Māori legal scholar Ani Mikaere, and whether it be through statute, common law or procedure and practice, tikanga has gained recognition and standing within the New Zealand legal system.

Law schools and tikanga

But it is still a concept which is poorly understood by the vast majority of the profession. For a long time, a gaping hole in the knowledge of our profession stemmed from the access and availability of information at law school.

In 2021, the New Zealand Council of Legal Education (NZCLE) decided to amend the regulations prescribing the content of the LLB degree in New Zealand to include teaching and assessment of tikanga Māori. From 1 January 2025, requirements to be progressively introduced include teaching and assessment of the general principles and practices of tikanga Māori relevant to each of the core subjects and Legal Ethics at the LLB level, and tikanga Māori will be taught in its own right as a new compulsory subject for the LLB degree.

Khylee Quince (Ngāpuhi), an associate professor and New Zealand’s first Māori Dean of Law at AUT, described it as a “real game changer.”

“The game changer really is the fact that it’s across-the-board and it’s mandatory.”

But most law schools are already underway with integrating tikanga into their learning programmes. All of our law schools in Aotearoa New Zealand – to some varying degrees – teach tikanga and Māori law and philosophy. Some have been doing it much longer than the 2021 NZCLE decision.

“Some of our law papers have taught about aspects of tikanga Māori for many years, such as our elective paper on Māori land law,” Mihiata Pirini, Metiria Turei, and Professor Jacinta Ruru from the University of Otago said.

“We are now embarking on a more comprehensive and integrated approach to teach aspects of tikanga Māori into all the compulsory papers in the law degree. In their first year, students learn about tikanga as Aotearoa’s “First Law”, and about the legal and constitutional significance of te Tiriti/the Treaty, from the earliest Māori-Crown encounters to today.

Mihiata Pirini, Metiria Turei, and Professor Jacinta Ruru from the University of Otago

“In addition, our third year compulsory full year jurisprudence course now has a major focus on Māori laws and philosophy with semester one entirely dedicated to this learning now.”

It’s more than just lecture room learning, however. Pirini, Turei and Ruru explain how they take tikanga out of the classroom and engage on a more holistic, te ao Māori level.

“Our major new initiative this year is an immersive wānanga programme for all 260 of our second-year tauira, which took place over the first seven days of the academic year. The students engaged with mātauranga and tikanga Māori, both in the lecture theatre and on the marae. Students and staff spent a day doing workshops and kapa haka at Ōtākau marae on the Ōtākau peninsula.

“This would have been a major experience for all students but particularly those who have not had much exposure to the practice and procedure of tikanga Māori through, for example, pōwhiri. The wānanga was designed and delivered by Professor Jacinta Ruru, Mihiata Pirini and Metiria Turei with support from Koro Hata Temo (Office of Māori Development) and two teaching fellows from Te Tumu, our School of Māori, Pacific and Indigenous Studies, Maioha Watson and Maria Tahana.

“From now on it will be a permanent fixture in our second year law programme.”

As mentioned earlier, tikanga is not a static thing. It is constantly evolving and as such the teaching, learning and understanding of tikanga does too.

“We have a challenging and exciting journey ahead of us,” Pirini, Turei and Ruru said.

“Challenging in terms of introducing the teaching of tikanga Māori across all the compulsory law papers and to make sure that it is done so appropriately, in collaboration with the right people and with appropriate support and expertise, both from within the University and from outside it.”

Another view of tikanga in law schools

Almost every one believes the integration of tikanga into the learning programmes at law school is not only important, but a critical part of our development as a legal system and profession. Although Moana Jackson recognised the importance of teaching tikanga Māori as part of the law degree, he argued that the teaching of tikanga within the Pākehā law degree is highly problematic.

As Hinemoana Markham-Nicklin and Toni Wharehok noted in the Māori Law Revue’s 2021 article “Legal education – reflecting on a bijural, bilingual and bicultural law degree”, “An assumption which sits at the heart of the Pākehā law degree, and the institutions that deliver this degree, is that Pākehā law is ‘the’ law and tikanga Māori is simply an ‘add-on’”.

In reality, they go on to consider, “Pākehā law is the second law of Aotearoa which was forced upon tangata whenua through colonisation.”

“In order to prevent this vicious cycle of epistemological racism continuing within our law schools and law degree, we must listen to Moana’s call to Pākehā staff and students to scrutinise their own culture and realise that Pākehā law is not “the” law but a cultural construct on its own.”

Why it matters

In 2012, the Supreme Court accepted in Takamore v Clarke that “Māori custom according to tikanga is therefore part of the values of the New Zealand common law.” The very next year, Justice Sir Joe Williams noted that “Lex Aotearoa is very much alive. It is still fragile, but its survival is more certain now than in the past. It is demanding that we change to address its challenges. I hope we Aotearoans are up for it.”

“There is increasing demand from the judiciary for advice on Māori law, especially since Takamore v Clarke,” Professor Jacinta Ruru noted.

“Other parts of the legal profession are recognising this need. Professional training is being done, for example, to upskill the judiciary on Māori law including time spent on marae. Law firms are engaging in Māori law professional development for their legal staff on Māori law understandings beyond treaty settlement and land law issues due to the needs of their clients.

“We need to ensure all Aotearoa New Zealand law graduates are well prepared for these new expectations in society and within the practice of law.”

Te Aopare Dewes and Nick Wells at Chapman Tripp said that “New Zealand is in a period of transformative recognition of tikanga Māori in the law, now more prevalent in legislation and increasingly being recognised by the courts as an integral part of decision-making.”

“This trend will only continue and eventually public decision makers will need to consider tikanga-based interests. This transformation will, over time, lead us closer to the cultural partnership that Te Tiriti intended.”

Tikanga is not just a ‘nice to have’ in our law schools and institutions – it is setting our next generation of practitioners and legal experts up with the tools and the knowledge to be able to navigate the changing landscape of our legal system.