The rise of t ikanga in Aotearoa New Zealand case law: Applications for Australian human rights lawyers

Abstract

This article looks at recent developments in Aotearoa New Zealand where courts are increasingly referring to tikanga Māori in the determination of disputes. Designed as an ‘entry point’ for Australian human rights and anti-discrimination lawyers, it uses practical examples to explore some transferable applications that might support better outcomes in an Australian context.

On 7 October 2022, Te Koti Mana Nui o Aotearoa/The Supreme Court of New Zealand handed down judgment in Ellis v The King (‘Ellis’), ¹ widely regarded as a pivotal moment in that Court’s approach to tikanga Māori. Ellis was not, by a long shot, the first mainstream legal case to consider tikanga, but it represented a major development. The ensuing three years have seen a flurry of decisions referring to tikanga.

This renovation going on in the whare (house) next door deserves consideration by all Australian lawyers, but especially human rights and anti-discrimination lawyers working with Māori, Aboriginal and Torres Strait Islander clients. I am a lawyer and legal academic, living and working on Yuggera and Turrbal land in Meanjin Brisbane. I am also Ngāpuhi (Māori). This article is not a comprehensive view of tikanga Māori nor the Aotearoa legal system, but rather an entry point from which Australian-based lawyers might begin to consider transferable applications arising from recent developments, drawing on examples from one of my own practice areas – cultural rights cases.

This article outlines how tikanga Māori can be used to improve cultural safety for Māori in non-court dispute resolution (negotiation, mediation and conciliation) here in Australia. It also considers how recent developments in the Aotearoa case law can substantively assist Māori asserting cultural rights or responding to discrimination under Australian law. Finally, it discusses protection for cultural rights and cultural diversity in the workplace, particularly for Aboriginal and Torres Strait Islander workers – a persistent challenge in Australia – and reflects on how Aotearoa’s courts have been encouraged over time towards some better recognition of the needs of Māori workers by reference to tikanga.

I note at the outset that there are two contexts, which sometimes overlap, in which tikanga is discussed in this article. One is tikanga at home, where it is a system of law, and the other is tikanga away, where it is a cultural practice or cultural right for Māori.

What is tikanga?

During proceedings in Ellis, a two-day wānanga (expert conference) was held, involving at least nine cultural experts. At the conclusion of the wānanga two of the experts, highly respected experts in Māori studies, tikanga or Māori language, Distinguished Professor Sir Hirini Moko Mead and Professor Sir Pou Temara, prepared a Statement of Tikanga on behalf of the group. It makes the following observations, among others, about tikanga:

• Tikanga is the Māori common law. ²

• The word tikanga derives from the word ‘tika’ meaning ‘right’ and tikanga describes the right or correct way to do things. ³

• Tikanga comprises both practice and principle. It provides both rules, and the principles that underpin or inform the rules. ⁴

• The principles are intertwined, interconnected and cannot easily be isolated from one another. ⁵

• While tikanga principles and values are constant and universal among Māori, they are also flexible and adaptive. ⁶

In Ellis a prominent aspect of tikanga was mana and various interrelated principles. ⁷ While acknowledging the caution against the artificiality of isolating tikanga concepts, knowing something about mana is a necessary entry point to the tikanga jurisprudence, and the remainder of this article. ⁸ In the Statement of Tikanga in Ellis, mana was described as ‘one of the fundamental principles of tikanga. Words that have been used to convey the principle of mana include: power, presence, authority, prestige, reputation, influence and control’. ⁹

Professors Mead and Temara explain that mana can be lost or gained, that it applies individually and collectively, notably to families via descent but also to broader communities. ¹⁰

In 2022 and 2023, Te Aka Matua o te Ture/the Law Commission, Aotearoa’s independent law reform commission, undertook a project of understanding and education about tikanga in the New Zealand legal system. The key output of that work was He Poutama, a study paper published in September 2023, supported by commissioned research. ¹¹ He Poutama expansively explores tikanga concepts including mana which is described as also having metaphysical features ‘combining notions of psychic and spiritual force and vitality, recognised authority, influence and prestige, and ... power and ability to control people and events’. ¹²

Mr Ellis had been convicted of serious criminal offences in the 1990s and was actively engaged in an appeal before Te Koti Mana Nui o Aotearoa/The New Zealand Supreme Court when he died in September 2019. In the ordinary course of the New Zealand law at the time, his death would usually have brought an end to the appeal proceedings. Tikanga however recognises rights beyond death, including to seek resolution and/or reparation for a wrong, and restoration of mana.

Mr Ellis was not Māori. His reliance on tikanga did not relate to a cultural right. It relied instead of the presence of tikanga within the fabric of the ordinary law of New Zealand, with the Court noting in the summary of its reasons that:

The Court is unanimous that tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant. It also forms part of New Zealand law as a result of being incorporated into statutes and regulations. It may be a relevant consideration in the exercise of discretions and it is incorporated in the policies and processes of public bodies. ¹³

Acting for Māori in Australia

Tikanga cannot, of course, form a complete legal system outside Aotearoa. ¹⁴ However, where Australian law provides protection for, or allows consideration of, race, culture and ethnic identity, the growing body of tikanga-related jurisprudence in Aotearoa offers Māori a valuable reference point. In addition to the cases, materials published to assist New Zealand lawyers and courts, including He Poutama, provide rich, contextual detail about tikanga and Māori culture.

Consideration of tikanga by mainstream judges, most of whom are not Māori and not tikanga experts, carries real risks in Aotearoa, including to the integrity of tikanga itself. ¹⁵ These are deep challenges – of plurality, indigenisation, self-determination, distribution of power and control, colonisation, mana, identity, and Te Tiriti ¹⁶ obligations, among others. To those of us outside Aotearoa who act for Māori away from home, the challenges present differently. In Australia, where tikanga is a Māori cultural right and not a complete system, we must stay especially vigilant against the threat of appropriation, tokenisation and distortion that is always present when any indigenous systems are decontextualised.

There are at least ¹⁷ 170,000 Māori living in Australia. ¹⁸ Māori engage with all areas of the Australian legal system and in some domains, for example incarceration, character-related deportations, and race discrimination, the prevalence of legal problems is known or suspected to be relatively high among Māori. ¹⁹

I have worked with many Māori clients, including with race-related legal issues. We have long engaged tikanga, substantively as a feature of race and culture for the purpose of anti-discrimination protections, and procedurally for improving cultural safety during dispute resolution. While cultural safety is of highest importance in cases which are themselves about cultural matters and discrimination, it is also relevant, important, and available in many other disputes and legal processes.

Cultural safety for Māori parties in dispute resolution

It is often possible to negotiate procedural adjustments for cultural safety in dispute resolution by accessing protections against indirect discrimination. ²⁰ In the human rights jurisdictions of Victoria, Queensland and the Australian Capital Territory (ACT), parties may also draw on the state’s human rights instruments’ provisions for cultural rights as well as other human rights such as the right to privacy. ²¹ Although human rights and indigenous rights are sometimes inappropriately, and harmfully, conflated, ²² human rights law can be helpful when indigenous systems are ‘away from home’.

In each of the Australian state and territory human rights instruments, the general cultural rights protections are described almost identically – as rights to, together with others of the same background or culture, enjoy a distinct culture, declare and practise a shared religion, and use a shared language. ²³

Cultural rights also overlap with other human rights and finding those additional alignments can support greater familiarisation and acceptance of culturally unique features. The right to privacy, for example, was described by Bell J in the Victorian case of Kracke v Mental Health Review Board as ‘The fundamental values which the right to privacy expresses are the physical and psychological integrity, the individual and social identity and the autonomy and inherent dignity of the person.’ ²⁴ Although they are conceptually distinct, there is a helpful dialogue between some aspects of mana, and the identity, integrity and dignity expressed within the right to privacy. This shared language can give more familiar structure to requests that relate to or rely on mana.

These provisions of Australian law have allowed Māori people whom I have assisted to insist that dispute resolution conversations occur face-to-face. In appropriate circumstances they have facilitated the incorporation of a variety of cultural components such as mihi and pepeha which are formal, structured acknowledgments and introductions delivered in Māori, karakia which are incantations and prayers delivered in Māori, and other practices into formal and informal dispute resolution processes. It is usually possible to arrange whanau (family) and other active support for clients during dispute resolution, including allowing for multiple speakers and cultural support during conciliation conferences. ²⁵

These practical features are combined with other authentic cultural safeguards. For example, upholding a respectful tone in interactions, ensuring all parties know basic cultural etiquette ahead of time, and that any speakers can pronounce words correctly. Māori parties may be supported to speak for themselves, and advocates can offer help and validation for narrative-style oratory.

One common feature of mainstream dispute resolution that directly engages with tikanga is in expectations around confidentiality when matters resolve by agreement. It may be essential to the mana of a Māori party to be able to share information about their experience and the fact of a resolution, especially if the dispute relates to Māori culture or wellbeing. Considering this at the outset can prevent in-principle agreements failing at the writing-down stage where another party might consider confidentiality to be standard, even if not discussed. He Poutama articulates the relevant aspects of mana as:

Mana will rise or diminish depending on the extent to which the associated responsibilities are assumed and discharged. It may also be affected by external factors diminishing mana. Metge, drawing on the advice of numerous tikanga experts, describes the dynamic quality of mana in this way:

The individual store of mana is never fixed but as with water in a lake its level continually rises and falls. It rises as a result of the acquisition of new forms of mana, conscientious observance of the rules governing its use, successful completion of tasks attempted, and the recognition and respect given by others. It falls as a result of misuse of the delegated power, failure to complete the tasks successfully, and insults and injuries inflicted by others.

…

Ngahihi o Te Ra Bidois puts it this way: mana lies ‘not so much in the deeds of the hero’ but in collective community wellbeing. Responsibilities tied to mana include ‘mauri ora (survival)’.

…

Mana may increase or diminish depending on the success or failure to discharge associated responsibilities. Any impact on mana, either positive or negative, will impact not only the individual but also the collective to which the individual belongs. Loss of mana can cause great whakamā. Violation of mana without proper reason, including failure to respect it, must be remedied in order to restore that mana and therefore achieve ea. ²⁶

Including some aspects of tikanga or Māori culture in dispute resolution will not convert a mainstream Australian process into a Māori one and, here, that is distinctly not the objective. Rather, tikanga is engaged to help bridge a cultural divide, facilitate safe and authentic engagement by Māori, particularly when explaining cultural practices, and find a path towards a settlement that feels like proper resolution. In this context the legislative underpinning is mainstream Australian law, and can be similarly engaged in a wide variety of dispute contexts by people who have specific needs arising out of any culture or race, or another protected attribute such as disability, age, sex, and so on.

It is also important to note that Māori individuals vary significantly in their cultural needs, and in attitudes towards including Māori cultural practices in situations outside of the Māori world. ²⁷ Additionally, if any participants are Aboriginal or Torres Strait Islander, most Māori will seek to foremost uphold the cultural authority of those Aboriginal and Torres Strait Islander people. ²⁸ Any lawyer working with a Māori client should, of course, be guided entirely by the individual client as to any practical adjustments they seek. Underlying cultural safety however, such as demonstrating respect for the mana of all parties, correct pronunciation, supporting people to speak for themselves in the way that best suits them, and thinking carefully about ancillary restrictions such as confidentiality can always be delivered as part of good lawyering without a specific request.

Māori race discrimination and cultural rights disputes

As well as providing procedural support, tikanga also arises substantively in Australia, particularly in cultural rights cases. The prevalence in Australia of discrimination or conflict relating to Māori identity or cultural practices and values is unknown, but anecdotal evidence and some reported cases confirm that problems do exist.

Anecdotal examples from Queensland include an April 2023 media report of a Māori law student with moko kauae being refused entry to a bar in Brisbane. ²⁹ Moko kauae is tā moko (tattoo) on the chin and lips, carried exclusively by Māori women. A May 2023 Change.org petition sought to obtain support for Māori students in Queensland schools who had been ‘told to remove their taonga’ causing ‘Māori students being embarrassed about their own culture’. ³⁰ Taonga in this context refers to pounamu (greenstone) or bone/whalebone carvings worn around the neck.

There are also accounts within the case law.

In 2012 Mr Rota, a Māori man, was asked to stop drinking, and then to leave, a Sailing Club in Sydney while socialising with his rugby team. He brought a discrimination case in which he gave evidence that he was the least intoxicated member of his team, and the only one who was not white. He was the only person asked to stop drinking, and the only one asked to leave. He alleged that his race was a reason for the treatment he received. Although Mr Rota was not successful, in a rare situation for an initial hearing, there were three decision-makers, and they were not unanimous. ³¹

In 2014, Ms Morunga, a Māori woman and nurse, was found to have been unfairly dismissed after giving a talk at a conference about racism in Australian health and other systems. ³²

In 2021, Mr Ferguson, a Māori man, brought a successful racial discrimination action having been subjected, at work, to almost daily racist insults about his dark skin, Māori identity, culture and heritage. ³³

The growing reference to tikanga in Aotearoa jurisprudence gives significant support to future Māori race discrimination and cultural rights cases in Australia, especially where cases relate to conduct other than directly racist, offensive behaviour such as name-calling. The decisions and associated materials enable a deeper understanding of Māori ethnicity and cultural practice to encompass attitudes, beliefs and perspectives, and the Māori world view.

Hikoia te korero – walk the talk

We can also consider the circumstances in which tikanga cases have arisen in Aotearoa, and whether they might reveal opportunities to revisit persistent challenges in Australia particularly for Aboriginal and Torres Strait Islander peoples. There are some relevant structural differences, notably Aotearoa’s modern political and legal system which has Te Tiriti o Waitangi at its foundation. While Australia lacks a similar underpinning, there are sufficient legislative, cultural and social commonalities to identify some areas primed for fresh attention.

Sir Joe Williams, who sat on the Court in Ellis and is New Zealand’s first Māori Supreme Court Judge, has written and spoken extensively about the development of tikanga within mainstream New Zealand law. ³⁴ He stresses the long, if patchy, history of tikanga in jurisprudence and, more significantly, that tikanga is woven into the language of New Zealand legislation. ³⁵ To Justice Williams, the recent jurisprudential explosion is, at least in part, simply the courts properly responding to the legislature. ³⁶ In some cases, particularly within the employment jurisdiction, the courts are also responding to what entities say about themselves. In both these respects, there are opportunities for Australian lawyers.

Cultural diversity at work

Legal protection for culture diversity at work is a persistent challenge in Australia. In August 2024, in one of his first presentations as Australia’s Race Discrimination Commissioner, Giridharan Sivaraman took aim at workplaces which actively hire diverse candidates, only to either assimilate, control or undermine them once employed. ³⁷ Aboriginal and Torres Strait Islander workers, researchers, academics and writers have long been saying the same. ³⁸

Australian workplace legislative protections, including prohibitions against unfair dismissal and race discrimination, have historically provided incomplete coverage for cultural differences and needs. A complainant seeking to establish race discrimination must generally prove either less favourable treatment, that is at least in part because of race (direct discrimination), or that a requirement being imposed would cause significant detriment to them because of their race (indirect discrimination). This negative, comparative framing means anti-discrimination laws are not always fit to address more insidious forms of structural racism, such as failures of cultural safety, and assimilationist practices.

Recent updates to anti-discrimination legislation in the Northern Territory, ³⁹ ACT ⁴⁰ Victoria, ⁴¹ and possibly soon in Queensland, ⁴² impose positive duties on workplaces to prevent and eliminate discrimination including because of race. ⁴³ There is also increasing recognition of the need to address psychosocial hazards under workplace health and safety legislation, which may include cultural safety. ⁴⁴ There is a recent significant improvement in the accessibility of the Racial Discrimination Act 1975 (Cth) thanks to new ‘equal access’ costs rules. ⁴⁵ Employment contracts too, are receiving fresh attention after the 2024 High Court decision in Elisha v Vision Australia ⁴⁶ set a new standard for holding employers liable for breaches of their own policies and procedures when those are incorporated into employment contracts.

There is good potential for a shift arising out of this refreshed legal environment particularly for Aboriginal and Torres Strait Islander workers, and cases from Aotearoa might assist in two ways.

First, the cases provide examples of how cultural needs can be easily accommodated in workplaces.

Second, and more significantly, rather than needing to determine a specific legislative, common law or free-standing legal origin for tikanga, the employment law cases focus on the individual workplaces, and what they say about themselves and their values.

The earliest important employment law cases considering tikanga pre-date Ellis. They were brought by Māori workers, working for Māori interests, generally in Māori controlled workplaces where reasonable expectations of tikanga compliance were established but not met, including:

• In 2002 Ms Burberry, a Māori health worker, brought a successful unfair dismissal case after her former employer first refused her leave to attend an event at which she had certain longstanding cultural obligations, and then dismissed her for attending anyway. ⁴⁷

• In 2005, the Employment Relations Authority investigated a workplace problem raised by Māori television presenter, Ngarimu Daniels. The Authority found the employer Māori Television Service (MTS) had adopted a tikanga based values framework; that Ms Daniels, a Māori worker, was entitled to expect tikanga principles would be observed; and that MTS had failed to do so. ⁴⁸

The post-Ellis unfair dismissal case of GF v Customs goes significantly further, by mostly ignoring the characteristics of the employee (in fact, GF was not Māori), and the work context, and instead homing in on the expectations established by the employer, Customs. ⁴⁹

Chief Judge Christina Inglis described employment law as ‘relationship-centric, based on mutual obligations of good faith, and focussed (where possible) on maintaining and restoring productive employment relationships’ and recognised that these obligations were compatible with tikanga Māori. ⁵⁰ She set out the ways Customs talked about tikanga, tikanga values and Māori employees in policy and other material and found she must ‘agree with Te Hunga Rōia Māori’s point that, where the evidence demonstrates a commitment to act in accordance with tikanga, an employer should be obliged to do so’. ⁵¹

She found that, having adopted statements linked to tikanga, Customs was not then at liberty to decide how to interpret and apply that, or to treat tikanga like a guideline or an aspiration. ⁵² In responding to Customs’ approach to its stated commitment to tikanga, she said:

Finally, I do not consider it adequate to respond to an alleged failure to act in accordance with relevant tikanga/tikanga values incorporated into the employment relationship to say (as was suggested in evidence) that Customs is ‘on a journey’ to understand what they mean. ⁵³

Many Australian workplaces, including government workplaces, say important things about their intentions towards First Nations workers including in policy and in representations to prospective and current employees. But how many could honestly say they have arrived at what an Aboriginal and Torres Strait Islander expert in lore or custom would recognise as self-determination, or proper recognition of culture and cultural safety, according to the expectations of Aboriginal and Torres Strait Islander people and communities?

It is important to recognise that GF v Customs did not, overnight, make all New Zealand workplaces into bastions of tikanga. Some Māori employees will be immediately worse off as their employer, having made statements about tikanga it barely understands, now hastens incompetently to realise them. It is also hard to avoid observing that the New Zealand Parliament is currently embroiled in something of a war on tikanga within its own workplace, including severe sanctions for several Māori Members of Parliament ⁵⁴ for a haka that most Māori celebrated as tikanga for both haka and the context in which was performed. It is not possible to fully mitigate against similar threats manifesting elsewhere, but case selection can help. The ideal respondent would have ready means of engaging quality cultural guidance. The earliest workplaces cases in Aotearoa focused on Māori-specific roles; ‘identified positions’ in Australia. As well as lawyers capable of arguing tikanga, a culturally expert intervener was helpful in Ellis, GF v Customs and other cases.

He tangata – it’s people

As change continues in Aotearoa, other transferable applications may become apparent. Māori often emphasise the preeminent importance of people, and especially the connections within and between families and communities. If Aotearoa courts can find authenticity as they turn towards tikanga, one impact should be to elevate people and communities in the way law is interpreted and disputes resolved. Australian lawyers interested in equality, dignity and Indigenous rights might consider building an understanding of tikanga to enable engagement with future developments as they arise.