In a recent article “Law News” published the text of a lecture given by Justice Christian Whata entitled “Embracing tikanga implications for New Zealand law.” He begins by saying that tikanga maori is not merely a collection of customs it represents a robust jural system complete with its own norms and procedures…..the challenge lies in extracting and applying these values, especially those like the inherent dignity of the person or the right to a fair trial.”
He cites the example of property law saying that the “assumption of sovereignty has not erased customary land rights” and that “the incorporation of tikanga maori into the mainstream New Zealand legal system reflects a broader societal shift towards recognising maori legal traditions as an integral component of our national identity.”
This quest for the recognition of maori social norms and values in the content and application of the common law in New Zealand entirely overlooks what the tribes agreed on when they met with Queen Victoria’s representative at Waitangi in 1840. For the purposes of the relevance of tikanga the term of the document which emerged from the discussion with the Chiefs is that they acknowledged that sovereignty over the islands of New Zealand would henceforth vest in the British Crown in Parliament and that the then inhabitants of New Zealand would become British subjects.
A crucial ingredient of the agreement is that henceforth the Common Law would apply throughout the land and it did so for some 180 years down to the time when our Supreme Court in an obiter statement from which two of the five judges dissented raised the possibility that the inherent dignity of Mr. Ellis, a deceased litigant was an additional ground for allowing the appeal. As Williams J. a man of maori ethnicity, pointed out that was something which was recognised in his knowledge of maori norms and practices. Since that harmless sounding opinion, the notion of a place for maori customs in the common law has taken hold among some of the judges of our courts.
It cannot be too strongly emphasised that the body of the common law is predicated on the basis that it is written down in a form which is available to all New Zealand citizens and in that way is knowable in advance of any course of action on which a citizen intends to embark. Ignorance of what is the law governing any human conduct is no excuse for the simple reason that it is written and readily available to all. If there is some dispute as to the meaning of the written law then the courts exist to resolve such disputes. However desirable the advocates of tikanga consider it to be in governing the conduct of society in 2025 it cannot meet this crucial test.
As is clear from the cases in which it has been invoked its content and relevance depend entirely on the oral evidence of a witness, usually elderly who expresses his or her opinion of what were the relevant societal norms among the tribes in 1840. This is the antithesis of the law being known in advance and available to all. I defy any advocate of allowing this unwritten folk history to be introduced into the common law as practiced in 2025 to produce a written code of tribal conduct which will meet the common law test.
Furthermore, a code which was in 1840 applicable to all tribes irrespective of their location and individual circumstances. Until that is produced it is a dangerous nonsense to attempt to decide civil and criminal disputes by reference to vague memories of what somebody’s great great grand- mother said on the subject in the dim past.
A further impediment to reliance on folk myths and legends is that the common law has never allowed the admission of religion or local customs in deciding disputes. This for the obvious reason that in the centuries in which it developed British society was riven with religious and ethnic differences. Accordingly, the system which evolved was limited to meeting the needs of all citizens irrespective of their beliefs and customs. This is one of its great strengths. It enables the Courts to dispense justice equally among all litigants. This has become crucial today with influx of Moslem and Asian emigrants and refugees. The same rules apply to all and there is no question of, for example the Koran becoming part of the common law or a case being decided by applying its tenets.
Then there is the fact that our law is recognised and understood around the world by all who trade with us. The common law is widely applied in countries with which we trade and to expect our trading partners to have their disputes decided by applying a myth or legend dreamed up by one of the litigants would make us the laughing stock of the international trading community. The adverse effect on our trading relationships would be severe. And all for what. To satisfy the wishes of a small part of a minority of our citizens.
All of that said, this has become one of those trendy nice to have additions to our way of life and if for no other reason demonstrating to the world that we are a caring and compassionate people. I have no doubt it is being taught in the law schools without any reference to the insuperable hurdles which it raises and if left unattended will come to infest our law. There is only one solution to what will become a major problem if allowed to fester and that is for the Minister of Justice to promote an amendment to the Constitution Act to ensure that Tikanga or any other religious or mythical beliefs form no part of the Common Law.