Tikanga Māori and the legal system
Tikanga Māori, like common law, is a set of rules developed over centuries based on commonly understood concepts such as fairness and equity, but unless explicitly provided otherwise it does not play a part in New Zealand’s Westminster-based legal system.
This can cause difficulties for lawyers representing Māori.
Damian Stone (Ngāti Kahungunu), partner at specialist Māori law firm Kahui Legal, frequently has to balance tikanga Māori with his job as a legal advisor.
Tikanga Māori intersects with the law on a number of different levels, including advising on compliance with legal obligations and drafting legal documents, according to Mr Stone.
Mr Stone used a trust context to address a situation where attempting to integrate the two legal systems could result in friction.
As iwi and Māori organisations are normally trusts, trustees sometimes see their main objective to be to comply with tikanga Māori.
But their lawyer’s primary job is to ensure their adherence to trust law.
“As a lawyer, if there is a conflict between trustee law and tikanga Māori, you have to advise trustees to comply with trust law,” Mr Stone said.
And ultimately: law comes before lore.
But this can be difficult for a lawyer representing Māori, to advise their clients whose expectation is their own system of law ought to prevail, Mr Stone said.
A lawyer representing Māori can also be expected to prepare documents that meet both the necessary legal requirements and the demands of tikanga Māori.
Tikanga Māori is a complex system of guidelines based on fundamental principles and it can differ between iwi and hapū and, in some instances, may apply differently to similar factual situations.
It is often difficult to express in writing and with the certainty the legal profession demands.
“A lot of lawyers struggle to incorporate tikanga Māori into legal documents – it is not impossible, but often it’s a hard balance to strike,” Mr Stone said.
“Even if [the law and tikanga Māori] are based on mutual sets of principles, there are going to be differences,” he said.
One of the most difficult situations for a Māori lawyer is being asked to represent a client whose interests are not in line with tikanga Māori.
An example of this could be being approached by a potential client, who is being sued by Māori claiming their development is damaging a wāhi tapu (sacred) site.
Under the rules of professional conduct for lawyers, a lawyer cannot refuse to act because doing so would be inconsistent with tikanga Māori.
Mr Stone advises lawyers in this situation who do not wish to act to inform prospective clients of their potential “interests” in the matter and to offer to help them find another lawyer.
While this generally works, a client could decide that in-depth knowledge of tikanga Māori enhances the lawyer’s position to advocate for them.
And, if the lawyer has capacity and could not otherwise refuse to act on approved grounds, they are obligated to take on and defend the client with their best possible argument.
Building bridges with tikanga Māori
The Wellington Community Law Centre (WCLC)’s newly established Kaupapa Māori free legal drop-in sessions aim to make Māori feel more comfortable discussing legal issues by creating a tikanga Māori discussion space.
The sessions offered at the law centre are based around Māori concepts of community, family and spirituality.
Although in its infancy, WCLC lawyer Kahureremoa Aki (Te Atihaunui-ā -Pāpā, Te Whānau-ā-Apanui) said she was already finding her services sought after due to her ethnicity.
“Becoming a Māori lawyer, you are quite in demand by your own people because you’re Māori,” she said.
“Even here I have a lot of clients coming in wanting to see me because I am Māori.
“Even though when it comes to their legal issue I have no expertise in that kind of area, they still want to see me.”
Ms Aki said it was the same in her own family – they will only see Māori lawyers.
“That's where your knowledge of tikanga is helpful,” she said.
This could include discussing whakapapa, doing a karakia and introductions before discussing the legal issues at hand.
“I think that makes it easier [for Māori] being in an environment like that – when you have to talk about a really Pākehā focused legal system,” WCLC legal education worker Tui Dunlop (Ngāpuhi) said.
“Embracing the environment that is tikanga makes the legal process easier.”
This article was published in LawTalk 781, 23 September 2011, page 13.