New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 25 April 2015
ACCESS TO CUSTOMARY LAW:
NEW ZEALAND ISSUES1
THE HON DEPUTY CHIEF JUDGE CAREN FOX
MāORI LAND COURT
In addressing the topic “Access to Customary Law: New Zealand
Issues”, I will discuss definitions of customary law and
then I will move
on and discuss different sources of Māori customary law. I will also
discuss ways of working with Māori
customary law by reference to the work
of the Waitangi Tribunal and the Māori Land Court. The ultimate purpose of
these matters is to assist all concerned to identify and access
Māori customary law.
ii. DEFINITIONS OF CUSTOMARY LAW
I want to begin by discussing what is “customary law”. To attempt
a definitive definition of what is custom law is fraught
with difficulty as
scholars have diverse views and those views perhaps reveal more about their
professional disciplines than they
do about the nature of customary law. The
difficulty of defining customary law is, perhaps, best reflected by pointing to
attempt made to deal with definitions in the Law Commission’s
“Māori Custom and Values in New Zealand Law Report”
I do not propose to attempt such a task either. Indeed, it would take a PhD
thesis to do so. What I can do is share one of the sources
that I have preferred
from the literature that may assist others to begin their own journey of
discovering customary law.
In some circles the study of customary law has been described as legal
anthropology. An excellent description of this field of study
is to be found in
N Rouland’s Legal Anthropology. He points out that legal
anthropology is the study of law in society. It begins from the premise that all
1 An earlier version of this paper was presented at the “Visible Justice: Evolving Access to
Law” Colloquium (Wellington, 12 September 2002).
law.2 He has identified that there are over 10,000 distinct known
legal systems operating in the world today. A study of those systems indicates
the following generalisations can be made:
• Law emerges with the beginning of social existence.
• The complexity of law in a society will depend on the complexity
or simplicity of that society; e.g. how many strata in
that society, the nature
of its economy etc.
• All societies possess political power that relies to some degree
on the coercive power of law, while the modern state is
only present in some of
• Where the state exists, customs and ritual may have been codified
or reduced to judgment by the instruments of the state,
e.g. the common law
imported into New Zealand from Britain in 1840.
• In all societies law represents certain values and fulfils certain functions;
however, the common principles of law are:
» the search for justice; and
» the preservation of social order and collective security.
• Law is obeyed in different societies because individuals are
socialised to obey, they believe in the just nature of the
law, they seek the
protection of the law, or they fear sanctions associated with
In this approach, laws are nothing more than societal rules which have to be
practically sanctioned in the here and now. Legal anthropology
sets itself the
objective of understanding these rules of human behaviour.3 These
rules must be designed to address wrongdoing and must, inter alia, be capable of
being socially and practically enforced in
the interests of the community. Only
then will they be considered part of the legal domain of a
However, it may be that this command theory of law is too rigid and too
Western and that a preferable way of approaching custom law
is that discussed by
Dr Alex Frame in his book Grey and Iwikau – A Journey into
2 See generally N Rouland Legal Anthropology (The Athlone Press, London, 1994) and the discussion by R Boast “Māori Customary Law and Land Tenure” in R Boast, A Eurueti, D McPhail and N Smith Māori Land Law (Butterworths, Wellington, 1999) 1-42.
3 See generally N Rouland Legal Anthropology above n 2, and the discussion by R Boast
“Māori Customary Law and Land Tenure” above n 2 at 2.
4 See generally N Rouland ibid., and the discussion by R Boast ibid n 2 at 47-108.
5 Victoria University Press, Wellington, 2002; see also Dr Frame’s
chapter in this volume.
Frame reviews the teachings of people such as Lon Fuller who described
customary law as “a language of interaction”. Taking
Frame argues that law “develops by incorporating, adapting and modifying
diverse elements”. If this approach
is taken, then much of the flexible
nature of custom is easily identified as law whether it stands alone or is
grafted onto or accommodated
within another legal system.6
iii. PACIFIC SOCIETIES
Perhaps, however, definitional approaches are unimportant in the context of
trying to understand the nature of Māori customary
law. It may be that it
is more appropriate to study what happened here and what still happens here
comparatively with other Pacific
societies. Māori society, after all, is a
Pacific society. From such study we may be able to learn new ways of
Māori customary law.
Such a review could begin with looking back as suggested by Professor Richard Boast in his great chapter in Māori Land Law.7 In his work he takes us back to theorists such as Malinowski and his Crime and Custom in Savage Society. In this work Malinowski studied the Pacific region and made attempts to identify that which in Pacific societies could be labelled customary law.8
For example, he has generalised that obedience to laws in these societies was
achieved through the concept of reciprocity. The law
was usually obeyed because
individuals knew that on other occasions they would benefit from the obedience
of others. A review of
the writings of Sir Edward Durie on the subject9
suggests that this argument is valid in relation to Māori
Aside from a review of these historical works and anthropological studies,
there is much to be learnt from the study of customary
law as it is being
applied today in Pacific countries. Custom law is affirmed and recognised in
many Pacific constitutions and there
are an ever increasing number of customary
law sources such as records of judgments or observations on the application of
in villages emerging out of these jurisdictions. Likewise a number of
legal scholars from the University of the South Pacific Law
published extremely thoughtful papers on the application of customary law
6 See generally K Sinclair A History of New Zealand (Penguin Books, 1991) Prologue and E Durie “Custom Law: Address to the New Zealand Society for Legal and Social Philosophy” (1994) 24 VUWLR 325 at 328 and 329.
7 Above, n 2.
8 See B. Malinowski Crime and Custom in Savage Society (Routledge and Kegan Paul, London, 1926) and N Rouland Legal Anthropology, above n 2, for a discussion on law in ancient societies.
9 E Durie “Custom Law” (Unpublished Paper, January,
these societies. Many of these resources can be sourced from the University
of the South Pacific Law School website. Follow the links
to the School of Law
– Vanuatu. A range of legal materials can be accessed from this site
without leaving your office or library.10
IV. MāORI CUSTOMARY LAW
As is clear from the research completed so far in this area, our general
understanding of Māori law is evolving. What is emerging
from the research
can only be described as broad in scope and laced with generalisations which
still need to be properly tested tribe
by tribe or region by region.11
Failure to do so will always mean, no matter how good any glossary or
dictionary of terms may be, that concepts of Māori law
will be selectively
chosen to fit outside the cultural context within which they have evolved and
adapted. In my view, Māori
customary law concepts can only be properly
ascertained and applied by considering their historical evolution within a
hapū or iwi from ancient times through to the present. The
challenge is to uncover and demonstrate that evolution.
What we do know from the research completed to date is that some emphasis has been given to conceptually framing Māori law in terms of “tikanga Māori”. This term is being used to describe the norms that maintained law and order in Māori society.12Tikanga, according to Sir Edward Durie, describes Māori law and the word is derived from the word “tika” or that which is right or just. Translated into English, tikanga has been rendered to mean “rule”.13
It is the sum total of such norms and values that formed tikanga Māori
or Māori law. Māori operated by reference to
tikanga and that was
underpinned by philosophical and religious principles, goals and values. All
combined to regulate the conduct
of individuals, whānau, hapū and iwi
and in this way social control was maintained by doctrines, such as the doctrine
tapu. It is this law that determined and still determines Māori
proprietary customary law.14
10 See, for example, Kenneth Brown “Customary Law in the Pacific: An Endangered Species?”
3 Journal of South Pacific Law, Article 2.
11 E Durie “Custom Law”, above n 6 at 325.
12 Ibid., at 2-4.
13 HW Williams Dictionary of the Māori Language (Government Print, Wellington, 1997).
14 H Kawharu Māori Land Tenure: Studies of a Changing Institution
(Oxford University Press, Oxford, 1977) at 40 and see E Durie “Custom
Law” above n 6.
According to this approach, prior to 1840 and in many parts of the country until the mid 1860s, Māori hapū (subtribes) and iwi (tribes) were exercising “tino rangatiratanga” or sovereignty over their territories, resources and affairs.15
They did so in accordance with tikanga Māori or Māori law which
operated as an effective legal order.16 This Māori system of law
and custom was used to make decisions regarding, inter alia:
• leadership and governance concerning all matters including
• intra-relationships and interrelationships with whānau (extended families)
hapū (subtribes), iwi (tribes/nations);17
• relationships with Europeans;18
• determining rights to land based on take tupuna (discovery), take tukua
(gift), take raupatu (confiscation) and ahikaa
• the exercise of kaitiakitanga (stewardship) practices including
the imposition of rāhui (bans on the taking of resources
or the entering
into zones within a territory) and other similar customs;20
• regulating use rights for hunting, fishing and gathering and
sanctioning those who transgressed Māori tikanga or Māori
both) in land and other resources;21
• regulating Māori citizenship rights to land and
15 See W Swainson New Zealand and its Colonisation (C Smith, Elder & Co, London, 1859) at 151, L Cox Kotahitanga: the Search for Māori Political Unity (Oxford University Press, Auckland, 1993) at 3-4 and chs 4 and 7.
16 FM Brookfield Waitangi & Indigenous Rights, Revolution, Law & Legitimation (Auckland University Press, Auckland, 1999) at 86 and 87, and note the recognition of this law in the New Zealand Constitution Act 1852 (UK) 15 & 16 Vict, s 71.
17 A Erueti “Māori Customary Law and Land Tenure” in R Boast, A Erueti, D McPhail and
N Smith Māori Land Law (Butterworths, Wellington, 1999) at 33-37 and 38-41.
18 A Ward A Show of Justice: racial ‘amalgamation’ in nineteenth- century. New Zealand (Auckland, Auckland University Press/Oxford University Press, 1974), at 23, and see A Erueti “Māori Customary Law and Land Tenure” above n 17 at 28-30.
19 A Erueti, ibid., at 42-45, G Asher and D Naulls Māori Land (NZ Planning Council,
Wellington, 1987) at 5 and 6; and see H Kawharu, above n 14 at 55-56.
20 Waitangi Tribunal Muriwhenua Fishing Report (Wai 22) (Government Printer, Wellington,
1988) at 181.
21 Ibid., at 58, 61.
22 H Kawharu, above n 14 at 39, A Erueti “Māori Customary Law and Land Tenure” above n
17 at 33-35, G Asher and D Naulls Māori Land, above n 19, at 7.
See also E Durie “Custom Law” above n 6 at 5. Note that these
scholars use the term “membership”
where this author uses
V. SOURCES OF MāORI CUSTOMARY LAW
Māori customary law was affirmed in the Treaty of Waitangi through the
guarantee of “tino rangatiratanga” and is
recognised in the common
law of New Zealand through the doctrine of aboriginal rights, although the
extent to which tikanga Māori
can be recognised remains to be argued. There
are now a number of statutes that recognise tikanga Māori including Te Ture
Māori Act 1993, Resource Management Act 1991, the Treaty of Waitangi
(Fisheries Claims) Settlement Act 1992, to name just three.
Then there is the
array of statutes that refer to the Treaty of Waitangi. These statutes by
implication include tikanga Māori.
For these reasons it is important for all those who work in the law, either
as law librarians, judges, lawyers, lecturers, researchers
or law students, to
be able to identify appropriate sources of Māori law.
I suggest all who assume these roles also start to learn Māori, as we on
the Māori Land Court bench are doing. The purpose
would be to become
properly conversant with those in Māori society who are knowledgeable of
Māori tikanga and te reo Māori.
Only then can the written sources,
that they are all so good at identifying, be placed in context.
I will now attempt to list some of the sources of Māori customary law to
demonstrate the breadth of material that is available on the subject.
Alex Frame with Paul Meredith in 2004 noted that English law is primarily
written, whereas those of “Maori law are performances
from a customary
repertoire of songs, chants, dances, ceremonial acts of various types, carvings,
and so on.”23 Their preferred approach was to recognise the
work of Professor Bernard Hibbitts at the University of Pittsburgh School of Law
has noted that customary law is personal, social, dynamic,
Thus it is the oral history of Māori people that is the primary source
of Māori law and it is to be found: in te reo Māori
language); in Māori cosmology; in whakapapa or genealogy; in waiata (song);
in tribal and hapū citizenship
and social organisation; in
whakatauākī and whakataukī (proverbs and sayings); karakia
(prayer); in the arts including
the performing and ancient and contemporary
visual arts; in place names (rivers, mountains, gardens, wāhi tapu etc.)
names; in whaikōrero (male oratory) and karanga (female
oratory); in meeting houses including the carvings and tukutuku
23 A Frame and P Meredith “Performance and Maori customary Legal Process” (paper prepared for Symposium on Concepts and Institutions of Polynesian Customary Law, University of Auckland, 2004) at 1.
24 Ibid., at 2.
(woven) panels; in the cultural use of resources and the artefacts and
utensils that were adapted to gather those resources. It is
there to be
researched for the benefit of future generations.
It seems to me that the next step in beginning this journey of discovery for
those who are just coming to terms with Māori customary
law should be with
Sir Edward Durie’s “Custom Law Paper”25 and Hone
Clarke’s “He Hinatorekite Ao Māori – A Glimpse into the
Māori World: Māori Perspectives
available on the Ministry of Justice website.27 Watch out for
the publication of Te Mātāpunenga, the Compendium of References to
the Terms and Concepts of Māori Customary Law (see articles by David
Baragwanath, Alex Frame and Richard Benton in this volume). Waikato
University’s Library has a large
collection available on Māori
customary law and the bibliographies can be easily obtained from the
Then read the Law Commission’s Māori Custom and Values in New
Zealand Law report (March 2001). The next step is to also read the Law
Commission’s Justice: The Experience of Maori Women Te Tikanga o te
Ture: Te Matauranga o Nga Wahine Maori e Pa ana ki Tenei (1999), because
both reports touch on the devastating impact caused by the imposed legal system
during the period of colonial denial
of Māori law from 1860 to 1975.28
These studies will give you an overview of what the field covers.
An archival source review should naturally follow if more depth is required,
including consulting early settler and Māori written
observations such as
those recorded in the diaries of William Colenso and George Grey etc. Early
Māori writings include whakapapa
books and diaries such as those held by
the Auckland Museum, many of which are in Māori and are access restricted.
sources include the letters and articles written for the old
Māori newspapers. Anthropological works such as those produced
Best and Sir Peter Buck (Te Rangihiroa) have their place in this jigsaw as do
publications such as the Journal of Polynesian Society. Books such as
Ngā Mōteatea as recorded by Pei Te Hurinui Jones and Sir
Apirana Ngata (recently republished four volumes by the Polynesian Society and
University Press) and the tribal histories such as Don Stafford’s
Te Arawa (now out of print) are important sources of this knowledge.
Librarians are especially well placed to assist in identifying these
25 Above n 6.
26 Ministry of Justice, Wellington, 2001.
27 Available at <www.justice.govt.nz/pubs/list/process_order.asp?pub=r691>
28 Available at
Other sources include the many letters, submissions and articles or study
papers written by Māori to Parliamentary Select Committees,
Government Departments, all sources waiting to be properly identified and
referenced into a tikanga Māori series.
Many are published in the
Appendices to Journals of the House of Representatives.
In contemporary times notable authors such as Sir Hirini Mead, Tania
Rangieuea, Dr Pat Hohepa, Sir Hugh Kawharu, Māori Marsden,
Pene Taiapa, Dr
Apirana Mahuika, Ani Mikaere, Moana Jackson, Sir Mason Durie, Andrew Erueti,
Judge Stephanie Milroy, Whaimutu Dewes,
Dr Nin Tomas, Dr Rose Pere, Dr Margaret
Mutu and many more have written on topics that bear on this subject. Their
should be listed by academic and legal librarians along
with any other source material they may have into an index for custom law
researchers who will use their libraries.
Sources such as the record of proceedings for Courts or tribunals including
the Minute Books of the Māori Land Court and the
archives and reports of
the Waitangi Tribunal have a wealth of information as well.
VI. WORK AND RESOURCES –
WAITANGI TRIBUNAL, MāORI LAND COURT AND MAINSTREAM
I now want to turn to consider how tikanga Māori is being used in the
work of the Waitangi Tribunal and the Māori Land Court
and then in the
mainstream legal system.
I am one of the 11 judges of the Māori Land Court. We sit in seven
districts and we administer approximately 5.6 per cent of
the New Zealand land
base that is still classified as Māori land. We are also available to sit
as Presiding Officers on the
Waitangi Tribunal. As the two legal institutions
within the dominant legal system most closely aligned to the revitalisation of
Māori, I think it is important to discuss how we apply tikanga
Māori in our work.
A. Waitangi Tribunal
The Waitangi Tribunal was first constituted in 1975 under the Treaty of
Waitangi Act of that year. It was established to hear claims
filed against the Crown pursuant to section 6 for inter alia any acts or
omissions that were inconsistent with the
“principles of the Treaty of
Waitangi”. Initially the
Waitangi Tribunal struggled to find a way to incorporate tikanga Māori
into its work and reports.29 However, with the appointment of Sir
Edward T Durie as the Chairman of the Tribunal by 1982, that position changed
In my view, the Waitangi Tribunal model is important in the revitalisation of
tikanga Māori because of the way it is constituted
to hear claims. It
brings together a mix of historical, legal and tikanga Māori experts who
analyse early settler and official
accounts with oral history. The Tribunal
hears claims in panels of three to five and many of these panels have been keen
with procedure, or introduce innovations so as to accommodate the
particular circumstances of the claims or context of claimant groups,
ensuring a fair process for the Crown.
Schedule 2 of the Treaty of Waitangi Act 1975 at clause 8(1) deems the Tribunal to be a commission of inquiry, under the Commissions of Inquiry Act 1908 (COI), and, subject to the provisions of the 1975 Act, all the provisions of that COI, except sections 11 and 12 (which relate to costs) apply accordingly. As with all commissions of inquiry, the Waitangi Tribunal has wide powers to regulate its own procedures. Under clause 5, sittings of the Tribunal are held at such times and places as the Tribunal or the presiding officer may from time to time determine. The Tribunal may meet in private or in public, as the Tribunal from time to time decides. Unless expressly provided in the 1975
Act, the Tribunal may regulate its procedure in such manner as it thinks fit,
and in doing so may have regard to and adopt such aspects
of te kawa o te marae
(customs of the marae) as the Tribunal thinks appropriate in the particular
case, but shall not deny any person
the right to speak during the proceedings of
the Tribunal on the ground of that person’s sex. Thus a Tribunal hearing
on a marae ātea (the domain in front a meeting house associated
with Tūmatauenga – the God of War) with the full
ritual of encounter,
known as the pōwhiri (welcome ceremony). During that time speeches and
waiata/ haka delivered or performed
are noted to ascertain the key factors of
any claim, namely, who the local people are, what their whakapapa is and how
links them to the land and other natural resources of the area or
any other aspect of the claim.
Clause 6 provides that the Tribunal may act on any testimony, sworn or
unsworn, and may receive as evidence any statement, document,
matter which in the opinion of the Tribunal may assist it to deal effectually
with the matters before it, whether
the same would be legally admissible
evidence or not. In addition, witnesses appearing before the Tribunal may give
in the Māori language. These pillars of procedure
29 See A Ward An Unsettled History: Treaty Claims in New Zealand Today (Bridget Williams
Books, Wellington 1999).
ensured that kaumātua (elders) and other traditional experts who wish to
give evidence can do so without the strict formality
associated with more formal
court or tribunal processes and they may do so in the Māori
Also notable is clause 7, which makes it clear that any claimant or other
person entitled to appear before the Tribunal may appear
either personally or,
with the leave of the Tribunal, by a barrister or solicitor of the High Court;
or any other agent or representative
authorised in writing. Any such leave may
be given on such terms as the Tribunal thinks fit, and may at any time be
have emphasised this “leave” aspect as it is too easily
forgotten in this jurisdiction, that representation by a barrister
is not a right and that the Tribunal has the right to reduce the number of
lawyers who appear and thereby reduce the
amount of formality so as to create a
more direct relationship with claimants.
As a result of the approach it takes to the hearing of claims, the reports of the Tribunal now demonstrate its unsurpassed expertise in dealing with evidence of tikanga Māori. When I first wrote this paper in 2002, the Waitangi Tribunal had incorporated several brilliant chapters in Te Whanganui-a-Orotu Report (Wai 55, 1996), Whanganui River Report (Wai 167, 1999), Rekohu – Report on Moriori and Ngati Mutunga Claims in the Chatham Islands (Wai 64, 2001) integrating, with some sophistication, tikanga Māori. Since 2001, there have been even more detailed chapters and sections of Waitangi Tribunal reports emphasising customary evidence and tikanga Māori. These reports include the Turanga Tangata Turanga Whenua Report (Wai 814, 2004), He Maunga Rongo
– the Report on the Central North Island Claims – Stage 1 (Wai 1200, 2008),
Mohaka ki Ahuriri Report (Wai 201, 2004), The Urewera Report (Wai 894,
2009), Wairarapa ki Tararua Report (Wai 863, 2010), Te Tau Ihu o te Waka a Maui – Preliminary Customary Rights Reports 1 & 2 (Wai 785, 2007), and the recently released Ko Aotearoa Tenei – A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity (Wai 262,
2011). All the reports of the Waitangi Tribunal may be found on line at the
Waitangi Tribunal’s website.
Aside from the reports of the Tribunal, there are countless tapes, mana
whenua reports and written briefs from Māori witnesses
who have given
traditional and contemporary evidence of Māori law, custom, practices and
beliefs during the hearing of their
claims. These sources are held in the
archives of the Tribunal and remain to be discovered by the student or
researcher of customary
B. Māori Land Court
In relation to the Māori Land Court, we too have some experience with
Māori customary law and dealing with Māori communities.
times in the history of the Court since 1865, our Court has been charged with
the responsibility of applying Māori
tikanga in relation to ascertaining
rights and interests in land, including hearing evidence on Māori customary
customary title, Māori succession practices,
customary marriages, Māori genealogy, wāhi tapu or sacred sites,
grounds and other places of importance.
The Preamble to Te Ture Whenua Māori Act 1993, sections 2 and 17,
implicitly require the Court to consider applications before
it in a manner that
takes into account aspects of tikanga. Tikanga is defined in our statute at
section 3 as “Māori customary
values and practices”. In
addition, the flexible nature of our procedure, with an emphasis on avoiding any
as set out in section 66, allows us to adopt marae kawa or
protocols and to hear cases in the Māori language. Since 2009, I
this provision to sit with elders during standard Court sittings in Te Kaha,
Opotiki, Wairoa, Gisborne and Ruatoria. Of
course, they cannot sit to hear the
case under this provision as they are not legally part of the Court, but they
can and do assist
with tikanga Māori issues that may emerge at the
commencement, during or at the conclusion of a case.
For specific cases, the parties, the Governor-General in Council, the Minister of Māori Affairs, the CEO of Te Puni Kōkiri or the Chief Judge, or any other court, commission or tribunal may also refer issues, or receive advice from the Māori Land Court on matters that raise tikanga Māori concerns. These include matters heard under Te Ture Whenua Maori Act 1993, sections 26A–26N,
26O–26ZB, 27, 29, and 30–30J. These provisions deal respectively
with Māori fisheries disputes, Māori aquaculture
jurisdiction cases under section 27 and 29, and representation disputes. Tikanga
Māori experts can be appointed
to hear such cases, and these experts form
part of the Court with full decision making power.
More often, however, the judges sit alone in areas such as the Taitokerau,
Waikato, Rotorua, Taupo and Aotea where there are still
people whose first
language is Māori. Coupled with the ageing of kōhanga reo graduates,
the first generation of whom are
now old enough to appear in the Court, there is
a demand for Māori language speaking judges.
Nonetheless, despite the experience and familiarity of the Court with matters
of custom, it would be a mistake to conclude that the
judges are experts in
tikanga Māori. The reality is that the complex nature of the statutory
surrounding Māori land law means that lawyers, who do not necessarily
have expertise in tikanga Māori, have in the past
dominated our bench. That
is why kaumātua have to be appointed to boost the Court’s ability to
hear such cases. This lack
of expertise is also the reason why we are exploring
the possibility of extending the composition of the Court to include
or “pūkenga” sitting with judges to hear
applications before the Court as full members of the bench.
In addition, the Māori Land Court judges are all attending annual
Māori language and tikanga Māori wānanga (learning
by the Institute of Judicial Studies. This initiative was first instituted in
2001 and has continued every year since
then. This is an initiative that comes
after 137 years of legal history.
Although several of the Native Land Court judges in the 1800s spoke some
Māori, there was no legal requirement to have any knowledge
tikanga or language to be appointed a judge of this Court. The good news is that
this issue has been addressed in Te
Ture Whenua Māori Amendment Act 2002.
Now section 7 requires that only people who are suitable, having regard to their
and experience in te reo Māori, tikanga Māori, and the
Treaty of Waitangi, should be appointed as judges of the Māori
and it is a matter taken seriously during the interview process for new
Appeals from the Māori Land Court are made to the Māori Appellate
Court where major concerns raising tikanga issues can
be fully heard and
determined by three judges of the Māori Land Court. In addition, the High
Court can state a case to that
Court on any question of tikanga under section 61
of Te Ture Whenua Māori Act 1993 and under section 99 of the Marine and
Area (Takutai Moana) Act 2011.
Turning to the resources of the Māori Land Court, it is important for
researchers of customary law to understand the nature of
land tenure and the manner in which the Native Land Court was used as an
instrument to assimilate that title
into the new colonial legal order. This
process should begin by reading the excellent chapter referencing most of the
in this field by Professor Richard Boast in Māori Land
Law.30 The next publication to read is Customary Māori
Land and Sea Tenure: Ngā Tikanga Taonga o Neherā.31
Then become familiar with the resources of the Māori Land Court,
which still acts as the repository for the largest collection
knowledge on this subject.
30 Above n 2.
31 Manatū Māori, Wellington 1991.
The evidence and early judgments of the Native Land Court are another useful
source of customary law and these are to be found in
the Minute Books held in
each of the seven Māori Land Court Registries and in the Chief
Judge’s Minute Books.
In modern times, tikanga Māori concerns raise various issues before the Court and some of the more recent relevant Māori Appellate Court judgments dealing respectively with the rights of whāngai (customary adoptions), rights of children, selling of interests in land and rights on intestacy include Hohua
– Estate of Tangi Biddle or Huhua (2001),32 Niao v
Niao (2004),33 Mihinui – Maketu A100 (2007),34
and Nicholas v Kameta – Estate of Whakaahua Walker Kameta –
Te Puke 2A2A3B1 and 2A2A3B2 (2011).
Accessing the records of the Māori Land Court, including its judgments,
is becoming easier. That has not always been the case.
Less than five years ago
the Māori Land Court records (comprising 12 million pages of paper records)
could only be accessed
by travelling to each Māori Land Court registry.
Through the introduction of a new computer system, all that has changed. The
Māori Land Information System or MLIS contains a complete computerised
index of all Māori land title and ownership information.
MLIS is now
available online so that Māori living in urban settings can search their
land information by using names of individuals
or block titles.
All of this information can be accessed at every Māori Land Court
district registry and anywhere else where a Court officer or
judge has a laptop
computer and can connect to the network. In addition, the system has been
extended to an imaging project allowing
the historical records of the Court to
be computerised. The Māori Land Court also has its own web page with all
of the Māori Appellate Court and reasonably important
judgments of the Māori Land Court loaded on site. Other information
concerning the Court and its services and Māori land are accessible via
this web page. Finally, the Pānui of applications
for hearing before the
Māori Land Court is published monthly and is delivered to any person who
requests a copy.
32 10 Waiariki Appellate Minute Book 43.
33 10 Waiariki Appellate Minute Book 263.
34 11 Waiariki Appellate Minute Book 230.
C. Mainstream legal system
I conclude by noting that other than a few successes in the Privy Council
during the early 1900s in cases such as Nireaha Tamaki v Baker
(1900–1901)35, Baldick v Jackson (1910),36
Hineiti Rirerire Arani v Public Trustee (1919)37 and in
more recent cases in the local courts such as Te Weehi v Regional Fisheries
Officer (1986)38 and Ngati Apa v Attorney-General
(2003)39 where Māori custom has been recognised or
acknowledged as a potential source of rights, the mainstream courts have been
by the notion that it is a form of law. However, a discernible shift
is occurring. This is reflected in judgments from all the courts
such as the Rangatahi Courts and the use of kaumātua (elders), the
Environment Court’s willingness to
have alternate Environment Court Judges
from the Māori Land Court and that Court’s acceptance of Māori
as karakia (prayers) and mihi (greetings) and the District
Court’s recognition of the appropriateness of custom in certain
Where there remains some entrenchment relates to the role of Parliament.
Although sometimes flirting with notions of custom such as
in Te Ture Whenua
Maori Act 1993, the Resource Management Act 1991 and the other statutes referred
to above, it has struggled with
the notion of customary law and has consistently
legislated to nullify the impact of any court decisions that it believes
its sovereignty as the penultimate source of all law concerning
Thus, it seems to me, there needs to be a continuing constitutional
conversation about the place of Māori customary law, the
Waitangi, the Constitution and the future we see for the tangata whenua of the
nation state that is New
35 [1842-1932] NZPCC 371.
36 30 NZLR 343.
37 NZPCC 1.
38  NZHC 149;  1 NZLR 680.
39  NZCA 117;  3 NZLR 643.