2D: THE CULTURAL DIMENSION

Tikanga Māori

55. The centrality and importance of Māori beliefs and values, as expressed through tikanga Māori, has received growing recognition in modern New Zealand law. Tikanga, as an expression of Māori customary values and practice, brings recognition of Te Ao Māori, a Māori world view, and depth to the understanding of cultural values that underpin the law. Te Tiriti o Waitangi³¹⁶ (the Treaty) recognises the obligations and the relationship between the Crown and Māori as tangata whenua. It values indigeneity and upholds a set of rights that the indigenous people ought reasonably to expect to exercise in modern times.³¹⁷
    
    
56. The Treaty also represents the bringing together of different world views: that is, English law, based on individual rights of self-determination and non-interference, with traditional Māori values (tikanga) such as self-determination – tino rangatiratanga – concerned with collective, not individual, interests.³¹⁸ The Treaty processes have given Aotearoa/New Zealand the ability and experience to respect these differences in a pluralistic society, by providing “a plumb line for values and respect for tikanga Māori,” as a basis for new legal frameworks. ³¹⁹
    
    
57. Justice Joseph Williams describes tikanga in this way: ³²⁰
    

    The system of law that emerged from the baggage Kupe’s people brought and the changes demanded by his descendants by the land itself have come to be known as tikanga Māori: ”tika” meaning correct, right or just; and the suffix “nga” transforming “tika” into a noun, thus denoting the system by which correctness, rightness or justice is maintained. That said, tikanga and law are not co-extensive ideas. Tikanga includes customs or behaviours that might not be called law but rather culturally sponsored habits. (Emphasis added)

58. In Takamore v Clarke,³²¹ a case involving a burial dispute between Mr Takamore’s iwi and his partner who was executor of his will, the Supreme Court held that “Māori custom according to tikanga is ... part of the values of the New Zealand common law”.³²² However, when considering the “executor rule”, the personal representative had the power not to acquiesce to tikanga.³²³ One difference between the common law and tikanga in burial disputes concerns the decision-making process itself. Under common law, the burial decision is made by a single person, the executor. In contrast, tikanga facilitates and encourages discussion and debate over the place of burial. The emphasis is on collective discussion in deciding where the deceased will lie. The force and length of discussions often reflects the mana of the deceased.³²⁴

59. Not only is tikanga recognised in the evolving common law but also in legislation. Tikanga is routinely defined in statute as “Māori customary values and practices”.³²⁵ In some instances, tikanga has acquired the status of a legal principle; for example, in the Resource Management Act 1991, decision-makers must have regard to the concept of kaitiakitanga (guardianship, as understood in accordance with tikanga).³²⁶ The reasoning processes applied by the Environment Court takes into account these values and traditions in reaching a decision, by way of cultural relativism, respecting that each culture has its own value-laden system of traditions and beliefs.³²⁷
    
    
60. There is ongoing debate and discussion as to the precise status of tikanga at common law and within the legal system.³²⁸ Creating a “space” for tikanga alongside legal certainty and individual autonomy is a challenge for policy and law-makers.³²⁹ As Justice Christian Whata, speaking extra-judicially, says, “The real challenge is how the tikanga, like the Treaty, might permeate the law”.³³⁰

61. One of the core values embedded within tikanga that aligns with supported decision- making is the relational notion of kinship, “whanaungatanga”. In traditional Maori society, the individual was important as a member of a collective.³³¹ The individual identity was defined through that individual’s relationships with others. The kinship relationship is based on whakapapa, which can be translated as a person’s genealogy. As Justice Joseph Williams explains: ³³²

    Of all the values of tikanga, whanaungatanga denotes the fact that in traditional Māori thinking relationships are everything – between people; between people and the physical world; and between people and the atua (spiritual entities). The glue that holds the Māori world together is whakapapa or genealogy identifying the nature of relationships between all things.
    
    Whanaungatanga is ... the idea that makes the whole system make sense – including legal sense.³³³

62. A second important concept of tikanga in this context is “mana”. In the decision-making context, mana ensures that individuals, especially elders, are accorded dignity and respect.³³⁴ Mana is a very powerful concept because respect for an individual may be at the cost of collective advantage. It is not so easy in a tikanga decision to take away the mana of decision- making even if the whānau want to; for example, where an elder has stated a preference to stay living in her home when the whānau believes the support of hospital care is needed.³³⁵
    
    
63. “Whakawhanaungatanga”³³⁶ refers to the process of bringing people together and fostering connections between people. The concept recognises the importance of the process of engaging with people through establishing relationships and relating well to others, by:
    

• whanaungatanga: making a connection and understanding relatedness to others; and
  
• mana: upholding dignity for both personal and whānau integrity.

64. Whakawhanaungatanga describes this process of providing support and help in a broad sense by allowing the “blood links” beyond family to become an expression of the range of responsibilities and rights. Smith says: “As Māori, we do this (whakawhanaungatanga) well”.³³⁷
    
    
65. Supported decision-making processes that recognise whanaungatanga and mana have an obvious place in the Family Court. As observed by Judge Annis Somerville:³³⁸
    

    Whanaungatanga is an integral part of tikanga in the Family Court, incorporating concepts of societal relationships and the rights and obligations that are inherent in them. These concepts are fundamental to the working of the Family Court.

66. The involvement of families and support for whānau, hapū and iwi in Family Group Conferences (FGCs) under the Children, Young Persons and their Families Act 1989 (CYPF Act) is recognised as one of the more innovative aspects of the Family Court.³³⁹ In this decision-making model, families have a collective imperative to find solutions for the care and protection of children. Yet surprisingly, neither tikanga nor whanaungatanga is defined or referred to in any statutes used in family law.³⁴⁰ There are specific Māori cultural considerations recognised under mental health law, is also under the jurisdiction of the Family Court.³⁴¹ However, the extent that the cultural considerations in the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT) Act) are operationalised is unclear and there is no commonly accepted standard of practice.³⁴²

67. Respecting the needs, values and beliefs of Māori does not mean that a pan-Māori perspective exists, as expressed in the question, “whose tikanga?” There is rarely one single viewpoint representative of Māori concerns, any more than there is a single ethical or religious viewpoint in any community. Moreover, there are examples in the development of law and policy in New Zealand where tikanga has shaped non-Māori views.³⁴³ Any legal framework must accommodate cultural diversity in New Zealand’s pluralistic society, as well as the need to recognise the rights and needs of Māori as tangata whenua.
    
    
68. The positive obligation to recognise relationships of support in the CRPD sits comfortably with tikanga, and the process of engagement with Māori through whakawhanaungatanga. New Zealand has a unique opportunity to enrich the discussion in a review of the law by ensuring these cultural influences are taken into account and given status in law as an approach to supported decision-making.

³³⁷ Interview with Barry Smith, QSM: PhD, Chair of the Health Research Council Ethics Committee, Te Rarawa and Ngāti Kahu (A Douglass, December 2015). Bishop defines whakawhanaungatanga as a process by which relationships are generated and maintained through the identification (via culturally appropriate means) of linkages, engagement and connectedness and, on this basis, a commitment to other people and their welfare and well-being: R Bishop Collaborative Research Stories (Dunmore Press Ltd, Palmerston North, 1996).

³³⁸ A Somerville, above n 325.

³³⁹ Children Young Persons and Their Families Act 1989, s 5. The Care of Children Act 2004 has been criticised for taking a too individualistic approach to issues of care and protection. It makes only passing reference to Māori values and leaves potentially a more confused understanding of tikanga for the guardianship of children. See B Atkin “Harmonising family law” (2006) 5 NZFLJ 140 at 141.

³⁴⁰ A Somerville, above n 325. For an example in child case law cited by Judge Somerville WH v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-007415, 11 September 2008, Courtney J. Another example of tikanga, and the inclusion of collective imperatives alongside valuing individual autonomy, are the Ngā Kooti Rangatahi, the Youth Courts held on marae (meeting places).

³⁴¹ The Mental Health (Compulsory Assessment and Treatment) Act 1992 makes special provision for “proper recognition” of whānau, hapū and iwi under ss 5 and 65.

³⁴² H Elder and R Tapsell “Māori and the Mental Health Act” in Dawson and Gledhill (eds), above n 92 at 249. See also J Baxter, T Kani Kingi, R Tapsell and others “The prevalence of mental disorder among Māori in Te Rau Hinengaro: The New Zealand Mental Health Survey” (2006) 39 Aust NZ Psych 401.

³⁴³ For example, the recognition of the importance of whakapapa and the right to know your genetic origins in assisted reproductive technology has arguably led to a more open attitude to knowledge of genetic parentage in New Zealand than exists in other countries: K Daniels and A Douglass “Access to Genetic Information by Donor Offspring and Donors: Medicine, Policy and Law in New Zealand” (2008) 27 J Med Law 131.