Understanding Tikanga Māori – kōrero with Hon. Justice Whata
Public sector lawyers are at the coalface of tikanga Māori’s interaction with State law.
But what does that engagement look like? Which tikanga principles are relevant and when? And how are those principles appropriately applied?
Almost 12 months on from the Law Commission’s seminal Study Paper, He Poutama, Hon. Justice Whata joined us to continue the kōrero on tikanga Māori’s increasing presence in Aotearoa New Zealand’s legal landscape.
How do public sector lawyers engage with tikanga?
Tikanga Māori is “emerging from the eclipse”, outlined Justice Whata, but it is happening on State law’s terms.
A public sector lawyer’s day-to-day mahi gives life and shape to tikanga principles in practice. Included among these are considering whether and which tikanga principles are relevant and how much weight they should be given, to:
- A power that is to be exercised,
- A policy proposal that is being discussed, or
- To a Bill that is to be introduced.
The work that public sector lawyers are doing is multi-dimensional and requires careful consideration of how to appropriately engage with tikanga principles.
What does the Te Ao Māori worldview mean when engaging with tikanga?
A key aspect of this engagement is strengthening the Te Ao Māori worldview through which we interact with tikanga principles. This will require a shift where we see tikanga through its own lens, rather than through a State law lens. This shift allows us to ask the right questions and ensures we do not overlook issues that are more important in Tikanga Māori than in State law.
What is Justice Whata’s guidance to public sector lawyers?
Justice Whata encouraged public sector lawyers to learn the general concepts noting that drawing on He Poutama is a good start. It is also important to acknowledge that lawyers will rarely be tikanga experts and we ought to know when to seek out help. Whilst there is no expert advisory group that public sector agencies can turn to for advice or guidance, some agencies have developed systems and processes over the years to help them navigate their interaction with Te Tiriti and that can assist them in their interaction with tikanga. Other agencies, however, are earlier on the path and are beginning to consider the questions that they might face in the future and resource accordingly.
Public sector lawyers need to:
- Unpack the context that you’re working in.
- Identify the questions or issues.
- Identify the tikanga concepts that are engaged in that context.
Tikanga Māori won’t be relevant or applicable all the time but the more familiar we become with the tikanga framework the more readily we will be able to identify when it is relevant, which concepts are engaged, and how much weight they need to be given.
Common concepts seen in Public Law legislation demonstrating coherence between Tikanga Māori and State law
The notion that Tikanga Māori and State law are in a constant state of conflict is wrong. Concepts like “consumer benefit” and “public benefit”, for example, may require us to reconcile mutually reinforcing values. The concept of “national interest” may require us to ask is whether there is an engagement with the Māori community and, if so, think about how we value that. The weight we attach to that engagement may depend on the principles that are engaged.
For example, if an agency is responding to an event that involves destruction of nature or loss of life, the concept of mauri (life essence or life force) may be engaged and that would require proportionate weight because it is a core concept in Tikanga Māori.
Justice Whata cautioned public sector lawyers to avoid conflating ‘culture’ or ‘cultural wellbeing’ with tikanga. While culture encompasses a broader range of concepts, there are certain tikanga values that are essential to cultural wellbeing that could be considered.
What does this mean for public sector lawyers?
- He Poutama will undoubtedly continue to be a crucial resource for legal practitioners coming to terms with how two distinct yet coherent legal systems work alongside each other and even more so for public sector lawyers at the forefront of this unfolding enterprise.
- It is crucial to approach Tikanga Māori through its own lens rather than solely through the framework of State law.
Thank you to Justice Whata for the time, effort and dedication he put into the kōrero and for sharing his knowledge with us. Tēnā rawa atu koe.
This seminar was Part One of our annual Public Sector Forum educational series. Hon. Justice Whata was interviewed by Geeti Faramarzi, Senior Associate, Public Law. The event was hosted by Nick Crang, Partner, Public Law.
Special thanks to Senior Associate Geeti Faramarzi for preparing this article.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
