By declaring tikanga relevant to any issue of common law or statutory interpretation, he says, the court has fundamentally transformed our legal system without democratic mandate.
Watts does not claim that tikanga had no prior place in New Zealand law. It did – but within familiar limits. Tikanga was recognised in cases about customary property rights or matters intrinsically connected with Māori affairs, particularly whānau and land issues.
The legal pathway for incorporating custom into the common law was set out long ago in Public Trustee v Loasby (1908) NZLR 801, which applied orthodox tests for when a custom becomes law.
As Watts notes (quoting Professor Paul McHugh), beyond aboriginal title “there was never any question that once New Zealand became a British colony, any continuity of Māori customary law would be limited personally to the Māori population”.
Tikanga was “law by Māori for Māori.” Courts respected that jurisdictional boundary. Customary law had to meet the Loasby criteria and there had to be a real Māori connection to the facts.
The question is whether recent decisions– especially Ellis, then Smith v Fonterra, Ngāti Whātua, Hata, and others – have respected that framework, or whether they quietly replaced it with something more radical.
The Supreme Court in Ellis: knocking down the walls
What the Supreme Court did in Ellis [2022] NZSC 114 was not simply to apply existing doctrine but to expand the scope and significance of tikanga.
First, the court suggested tikanga has a foundational status as the “First Law” of Aotearoa New Zealand and was never displaced by the arrival of English common law. Tikanga, it said, “regulated the lives of Māori when the first settlers arrived and has never ceased to do so”. It is flexible, evolving and able to meet new circumstances. It is also not uniform: tikanga varies between iwi and hapū.
Second, the court emphasised that tikanga has long been woven into New Zealand’s legal framework through legislation such as the Resource Management Act 1991, Te Ture Whenua Māori Act 1993 and Oranga Tamariki Act 1989.
Even where it is not named, courts have interpreted statutes in light of tikanga values. Tikanga, the court observed, has entered the common law “along these pathways” as both a source of rights and of values that help shape legal development.
Crucially, the court rejected the old colonial tests for the incorporation of custom into the common law – tests like those in Loasby – on the basis that they rested on outdated assumptions of cultural superiority.
Instead, it endorsed a contextual, case-by-case approach. Tikanga principles like mana, whanaungatanga and ea were said to offer valuable guidance in resolving disputes, including whether an appeal should continue after an appellant’s death, as in Ellis.
This is not a minor step. The court did not merely recognise tikanga where Māori customary rights were directly at issue. It declared tikanga a general source of law and a lens for statutory interpretation across the board, while discarding the orthodox framework that had governed recognition of custom for over a century.
Watts is right to see that as a break with legal orthodoxy. The question is whether it is evolution or revolution.
Earlier recognition: Ngati Apa and customary law
It is important to distinguish Ellis from earlier, more orthodox uses of tikanga.
A leading example is Attorney-General v Ngati Apa [2003] 3 NZLR 643, where the Court of Appeal revisited Māori customary title to the foreshore and seabed.
The court examined history in detail, overruled Re the Ninety-Mile Beach, and held that Māori customary title is grounded in tikanga and is part of the common law of New Zealand. The nature and incidents of that title were to be determined by tikanga, not by importing English land concepts.
Tikanga was central to the result, but the case was firmly within the traditional category of customary rights as between Māori and the Crown. That sits comfortably within the Loasby framework.
No one could say Ngati Apa represented an unmandated constitutional revolution. It was a robust, but orthodox, application of existing principles about aboriginal title and custom.
What has changed since Ngati Apa is not the fact that courts take tikanga seriously, but the way in which they characterise its status and reach.
Ngāti Whātua: tikanga and ‘first law’
Justice Palmer’s decision in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] 3 NZLR 601, delivered six months before Ellis, contains one of the most sustained judicial explanations of tikanga.
He describes tikanga as a set of binding principles, beliefs and traditions practised collectively by Māori whānau, hapū and iwi “since time immemorial”.
Tikanga, he says, arises from Māori cosmology; it is grounded in creation stories and the authority of the atua.
It embraces values such as whanaungatanga, manaakitanga, kaitiakitanga, mana, tapu, noa, utu and ea, and is expressed through practices like karakia, waiata, haka and whaikōrero. Tikanga is holistic, dynamic, context-dependent –and a “free-standing legal framework recognised in New Zealand law”.
Palmer J characterises tikanga as the “first law” in the sense that it governed Māori society before British sovereignty and continued to operate in areas where colonial institutions did not reach. He notes the long common-law tradition of recognising local custom as law and cites early authorities and instructions that directed the protection of Māori customs.
Tikanga, on this account, is both a system of law and a culturally embedded way of ordering life. It existed before 1840, was recognised (at least in theory) by the colonial authorities and has persisted among Māori communities. Modern statutes and decisions recognise it more explicitly, but they did not create it.
Importantly, none of this analysis was repudiated by the Supreme Court in Ellis. On the contrary, it was affirmed and extended.
Smith v Fonterra and Hata: Consolidating ‘first law’
In Smith v Fonterra [2024] 1 NZLR 134, the Supreme Court considered whether novel tort claims centred on climate-change harms should go to trial. Tikanga entered the case because Michael Smith claimed to act as kaitiaki on behalf of land, waters and seas, not merely as an individual landowner.
In summarising the place of tikanga in New Zealand law, the court explicitly stated that tikanga “was the first law of New Zealand, and it will continue to influence New Zealand’s distinctive common law as appropriate according to the case and to the extent appropriate in the case”.
This moves beyond Ellis. Tikanga is no longer just relevant to interpretation; it is portrayed as historically prior and normatively foundational.
The legal pathway for incorporating custom into the common law was set out long ago in Public Trustee v Loasby (1908) NZLR 801, which applied orthodox tests for when a custom becomes law.
As Watts notes (quoting Professor Paul McHugh), beyond aboriginal title “there was never any question that once New Zealand became a British colony, any continuity of Māori customary law would be limited personally to the Māori population”.
Tikanga was “law by Māori for Māori.” Courts respected that jurisdictional boundary. Customary law had to meet the Loasby criteria and there had to be a real Māori connection to the facts.
The question is whether recent decisions– especially Ellis, then Smith v Fonterra, Ngāti Whātua, Hata, and others – have respected that framework, or whether they quietly replaced it with something more radical.
The Supreme Court in Ellis: knocking down the walls
What the Supreme Court did in Ellis [2022] NZSC 114 was not simply to apply existing doctrine but to expand the scope and significance of tikanga.
First, the court suggested tikanga has a foundational status as the “First Law” of Aotearoa New Zealand and was never displaced by the arrival of English common law. Tikanga, it said, “regulated the lives of Māori when the first settlers arrived and has never ceased to do so”. It is flexible, evolving and able to meet new circumstances. It is also not uniform: tikanga varies between iwi and hapū.
Second, the court emphasised that tikanga has long been woven into New Zealand’s legal framework through legislation such as the Resource Management Act 1991, Te Ture Whenua Māori Act 1993 and Oranga Tamariki Act 1989.
Even where it is not named, courts have interpreted statutes in light of tikanga values. Tikanga, the court observed, has entered the common law “along these pathways” as both a source of rights and of values that help shape legal development.
Crucially, the court rejected the old colonial tests for the incorporation of custom into the common law – tests like those in Loasby – on the basis that they rested on outdated assumptions of cultural superiority.
Instead, it endorsed a contextual, case-by-case approach. Tikanga principles like mana, whanaungatanga and ea were said to offer valuable guidance in resolving disputes, including whether an appeal should continue after an appellant’s death, as in Ellis.
This is not a minor step. The court did not merely recognise tikanga where Māori customary rights were directly at issue. It declared tikanga a general source of law and a lens for statutory interpretation across the board, while discarding the orthodox framework that had governed recognition of custom for over a century.
Watts is right to see that as a break with legal orthodoxy. The question is whether it is evolution or revolution.
Earlier recognition: Ngati Apa and customary law
It is important to distinguish Ellis from earlier, more orthodox uses of tikanga.
A leading example is Attorney-General v Ngati Apa [2003] 3 NZLR 643, where the Court of Appeal revisited Māori customary title to the foreshore and seabed.
The court examined history in detail, overruled Re the Ninety-Mile Beach, and held that Māori customary title is grounded in tikanga and is part of the common law of New Zealand. The nature and incidents of that title were to be determined by tikanga, not by importing English land concepts.
Tikanga was central to the result, but the case was firmly within the traditional category of customary rights as between Māori and the Crown. That sits comfortably within the Loasby framework.
No one could say Ngati Apa represented an unmandated constitutional revolution. It was a robust, but orthodox, application of existing principles about aboriginal title and custom.
What has changed since Ngati Apa is not the fact that courts take tikanga seriously, but the way in which they characterise its status and reach.
Ngāti Whātua: tikanga and ‘first law’
Justice Palmer’s decision in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] 3 NZLR 601, delivered six months before Ellis, contains one of the most sustained judicial explanations of tikanga.
He describes tikanga as a set of binding principles, beliefs and traditions practised collectively by Māori whānau, hapū and iwi “since time immemorial”.
Tikanga, he says, arises from Māori cosmology; it is grounded in creation stories and the authority of the atua.
It embraces values such as whanaungatanga, manaakitanga, kaitiakitanga, mana, tapu, noa, utu and ea, and is expressed through practices like karakia, waiata, haka and whaikōrero. Tikanga is holistic, dynamic, context-dependent –and a “free-standing legal framework recognised in New Zealand law”.
Palmer J characterises tikanga as the “first law” in the sense that it governed Māori society before British sovereignty and continued to operate in areas where colonial institutions did not reach. He notes the long common-law tradition of recognising local custom as law and cites early authorities and instructions that directed the protection of Māori customs.
Tikanga, on this account, is both a system of law and a culturally embedded way of ordering life. It existed before 1840, was recognised (at least in theory) by the colonial authorities and has persisted among Māori communities. Modern statutes and decisions recognise it more explicitly, but they did not create it.
Importantly, none of this analysis was repudiated by the Supreme Court in Ellis. On the contrary, it was affirmed and extended.
Smith v Fonterra and Hata: Consolidating ‘first law’
In Smith v Fonterra [2024] 1 NZLR 134, the Supreme Court considered whether novel tort claims centred on climate-change harms should go to trial. Tikanga entered the case because Michael Smith claimed to act as kaitiaki on behalf of land, waters and seas, not merely as an individual landowner.
In summarising the place of tikanga in New Zealand law, the court explicitly stated that tikanga “was the first law of New Zealand, and it will continue to influence New Zealand’s distinctive common law as appropriate according to the case and to the extent appropriate in the case”.
This moves beyond Ellis. Tikanga is no longer just relevant to interpretation; it is portrayed as historically prior and normatively foundational.
Hata v Attorney-General [2025] NZAR 241, a High Court case concerning Te Whakatōhea settlement arrangements, reinforces this direction, while showing some judicial caution.
Justice Isac describes tikanga as a system of law in its own right, regulating Māori society “since time immemorial,” but stresses that its application in state courts is context-dependent and cannot override statute or fundamental legal principles.
Tikanga, he says, must be applied with care so as not to distort it, and it remains one legal order among others.
What emerges from Smith, Hata and Ngāti Whātua is a shared narrative: tikanga is a pre-existing, independent system of law that has survived colonisation and now stands as “first law” – an idea increasingly used as an organising concept for judicial reasoning.
Tikanga at the edges: Leef and R v R
Once the Supreme Court had announced that tikanga was part of the common law and the “first law” of the land, it was inevitable that counsel would test its application in new areas.
In Police v Leef [2025] NZDC 14940 (a case about gang-patch destruction under the Gangs Act), the District Court judge accepted that tikanga forms part of the common law and that statutes should be interpreted consistently with tikanga unless Parliament clearly provides otherwise.
Even though no tikanga evidence was heard and the case ultimately turned on other grounds, the door was opened: tikanga is now available as a potential influence on criminal sentencing and interpretation, even in contexts far removed from traditional Māori–Crown disputes.
In R v R [2025] NZCA 470, a Court of Appeal decision on name suppression, tikanga was directly engaged.
The court, citing Smith and Hata, accepted that tikanga is the first law and relevant to assessing hardship on whānau. Expert evidence described concepts such as whakamā, utu and whānau responsibility. The court acknowledged the deep cultural impact of publication but ultimately held that open justice prevailed.
These decisions do two things. They normalise references to tikanga even in mainstream criminal and procedural cases and they confirm that tikanga is being treated not merely as a contextual “cultural factor” but as part of the normative framework courts are expected to engage with.
Critical theory: the hidden framework
At this point the debate shifts. The question is no longer whether tikanga matters – it plainly does – but how and why courts are treating it as “first law” and what intellectual toolbox is driving that approach.
Here, the influence of critical theory becomes hard to ignore.
Critical theory, in broad terms, fuses Marxist ideas about class struggle and power with postmodern scepticism about objective truth. It treats law not as a neutral, rational system but as a tool that reflects and entrenches power structures.
Postmodernism rejects universal truths, emphasises narrative and “lived experience” and is wary of Enlightenment values such as rationality, individualism and empiricism.
Modern critical movements – critical race theory, postcolonial studies, critical legal studies – apply this lens to different domains. They focus on the divide between the empowered and the disempowered, seek to ‘awaken’ oppressed groups to their condition, and turn theory into praxis: activism aimed at radical structural change.
Labels such as ‘racist’, ‘colonial’ or ‘privileged’ often serve as veto terms, shutting down debate rather than engaging with evidence.
Critical race theory, for example, frames racism not as individual prejudice but as a pervasive system that benefits whites by default. Decolonisation discourse treats colonial legal systems as mechanisms of domination that must be deconstructed or replaced, often by re-centring indigenous epistemologies and law.
The language now used at the highest levels of the New Zealand judiciary – talk of “first law”, of “decolonising” the legal system, of the need to move beyond ‘colonial’ tests for custom – is strongly reminiscent of this critical-theory toolkit.
Justice Susan Glazebrook’s extra-judicial comment that “until we complete the process of decolonisation the rule of law can only be considered a work in progress” is a particularly clear example.
Critical Legal Studies (CLS), a branch of critical theory, goes further. It argues that law is inherently political, that doctrine is indeterminate and that judges inevitably smuggle in subjective values under the guise of neutral reasoning.
Law, on this view, is a legitimising mask for dominant power structures.
It is not suggested that New Zealand judges are consciously importing Marxist or Frankfurt School theory into their decisions. But when courts redefine foundational concepts – discarding long-established tests, elevating a spiritually grounded and locally variable normative system to “first law” and framing this as part of a project of ‘decolonisation’ – they are operating within a recognisably critical-theory paradigm.
“First law” as critical project
The idea of “first law” in classical jurisprudence usually refers to natural law – the rational or moral principles that bind all people and from which human laws derive. Thinkers such as Aquinas or Grotius conceived of a universal law of reason: good is to be pursued, evil avoided.
The modern “first law” rhetoric surrounding tikanga is quite different.
It does not claim that tikanga expresses a universal moral law binding all humanity. Rather, it challenges the legitimacy of the colonial legal order and insists that indigenous normative systems were suppressed and must now be restored to priority. It is about power, history and identity, not simply about universals.
“First law” theorists argue that settler legal systems are not neutral but instruments of colonisation and dispossession. They reject the notion that Western law is universal or superior, and they foreground indigenous law as an alternative epistemology. They seek legal pluralism and, in some versions, a reconfiguration of state law around indigenous concepts.
This approach draws heavily on critical theory’s methods: exposing power, questioning “neutrality”, privileging marginalised perspectives, merging scholarship with activist goals. It is an emancipatory project, not a modest doctrinal adjustment.
Seen in this light, judicial adoption of “first law” language is not a mere stylistic flourish. It signals a shift from treating tikanga as a source of custom – tested and incorporated case by case – to treating it as an independent, foundational legal order whose claims may trump or reshape the inherited common-law framework.
Is tikanga ‘law’ in the ordinary sense?
This leads to a more basic question: what do we mean by ‘law’?
The case law and scholarship now routinely describe tikanga as a “system of law in its own right”. Yet tikanga, as described by expert witnesses and judges, has several features that distinguish it from what most lawyers would recognise as a legal system in the Western sense.
- It is not secular. Tikanga is inextricably linked to Māori spiritual belief and cosmology. Its authority derives partly from the atua and creation narratives. That does not disqualify it from being law, but it places it closer to religious law than to a secular normative system based on reason and shared institutions.
- It is not fixed. Tikanga varies between iwi and hapū and evolves with context. Even marae protocols differ regionally. There is no single nationwide code of tikanga; it is local, relational and dynamic.
- It is overwhelmingly oral. Before European contact there was no written Māori language. Tikanga was transmitted orally, through story and practice. As historians such as Michael Clanchy have shown in the English context, unwritten custom is inherently fluid, shifting with memory and circumstance. The move in English law from oral to written records was driven in large part by the need for certainty and reliability; “if it is law, it will be found in our books,” as Lord Camden famously said.
For these reasons, it is more accurate to describe tikanga as a rich body of customary practices and values than as ‘law’ in the traditional sense of a coherent, reasonably predictable rule system applicable across a polity.
None of this means tikanga is irrelevant. On the contrary, custom has been a recognised source of law for centuries.
Medieval English law incorporated local customs – about land use, markets, fishing rights – if they could be shown to be ancient, certain, reasonable and exercised “since time immemorial”. Over time, those customs were absorbed into the common law and statute.
That gradual, evidential approach is how the common law normally develops. Tikanga could be handled in the same way: as a body of custom that, where properly proved and where appropriate, is given legal effect. That is essentially what Loasby and Ngati Apa did.
What Ellis and its descendants do is different. They do not simply recognise particular tikanga-based customs; they make a broad, almost constitutional-level assertion about tikanga’s status as “first law” and they jettison the traditional tests in favour of a critical, decolonising narrative.
Evolution or quiet revolution?
Is this evolution or revolution?
On one view, it is a natural and overdue development. New Zealand is a bicultural nation. Tikanga has always governed Māori life and has long been recognised in pockets of law.
Giving it fuller recognition, ensuring courts engage respectfully with Māori perspectives and using tikanga as a source of values in a more plural legal order may be seen as a healthy adaptation of the common law to local conditions.
On another view, however, the way this has been done – the sweeping language of “first law”, the rejection of orthodox custom doctrines, the alignment with decolonisation discourse and critical theory – looks less like incremental evolution and more like a constitutional reconfiguration undertaken by judges rather than Parliament.
Professor Watts’ concern is not about acknowledging tikanga in appropriate cases. It is about legitimacy and method.
Courts are meant to develop the common law incrementally, not to adopt new foundational theories of law that radically alter the balance between sources of authority. If tikanga is to be placed on a constitutional pedestal, that is arguably a task for the legislature after public debate, not for judges through obiter dicta.
There is also a practical concern. The more weight courts place on fluid, localised, predominantly oral tikanga, the more difficult it becomes to maintain the certainty and predictability that are hallmarks of the rule of law.
If tikanga can mean different things in different contexts, and if judges must navigate spiritual and cultural concepts without a stable written framework, the risk of inconsistency and contestation is obvious.
The real quiet revolution, then, may not be about tikanga itself – which has always been important – but about the intellectual framework used to justify its new status.
Critical theory has slipped, often unacknowledged, into New Zealand’s highest courts. Concepts like decolonisation, systemic power and “first law” now shape judicial reasoning, even while courts continue to present their work in the language of neutrality and precedent.
It would be better, and more honest, if this were openly acknowledged.
Critical theory is not neutral. It is a particular way of seeing the world – one that is sceptical of Enlightenment rationality, hostile to traditional notions of objectivity and individualism, and committed to activist, structural change.
There is nothing wrong with debating whether that is the framework we want for our legal system. But such a debate should take place in public, with Parliament and citizens involved, not be smuggled in under the guise of ‘developing’ the common law.
New Zealand’s courts are engaged in something significant. Whether we call it evolution or revolution, it is reshaping the relationship between tikanga, the common law and the institutions of the state.
The least we can insist on is that the terms of that project are clearly understood and that we are not told it is business as usual when, in fact, something quite new is being built.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View. This article was originally published HERE.
1 comment:
Thank you David for this useful and informative article.
I cannot help but ask the obvious question: What about the Treaty Article 3 and the views of Ngata on the value of British law?
More relevant from my perspective is that you say that tikanga is inextricably linked to Maori spiritual belief and cosmology. Now that is a derangement similar to Greek mythology best explained from psychology which should disqualify it from being law of any sort.
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