NZCPR Newsletter: Tikanga On Trial

At the Wellington District Court on 10 March 2026, charges of intentional damage and obstructing police against the protester who defaced Te Papa’s Treaty of Waitangi exhibit in 2023 were dismissed.

The Crown Solicitor decided that, in spite of there being sufficient evidence to prove the charges, proceeding with the case was not in the public interest, and he requested the charges be withdrawn under section 146 of the Criminal Proceedings Act 2011.

Judge Noel Sainsbury, however, noting that ‘withdrawal’ left the door open for a further attempt at prosecution at a later stage, determined that a more permanent end to the matter was required, and he dismissed the charges under section 147 of the Act. 

The law breaking had occurred just before lunch on December 11, 2023, when a group of Te Waka Hourua protesters disguised as workers wearing hi-vis vests and hard hats entered Te Papa and proceeded to the “Signs of a Nation” exhibition, with its floor-to-ceiling display of the English text of the Treaty.

One of the group abseiled from the roof of the museum and, using an angle grinder and spray paint, defaced the exhibit, destroying most of the words to leave only, in Article 2, “Her Majesty the Queen of England is the alien”, and in Article 3, “ration the Queens veges”.

Police were called and 12 people were arrested.

The 29-year-old abseiler, Te Wehi Heketoro Ratana, was charged with intentional damage, obstructing police, and a breach of bail. He was remanded in custody.

A 53-year-old woman, Catherine Murupaenga-Ikenn, was charged with intentional damage – later reclassified as graffiti vandalism.

And a 46-year-old man and a 52-year-old woman were both charged with a breach of bail.

Eight others were arrested for trespass and escorted outside the building. They were released without charge.

This was not their first attempt to remove the installation. The display – part of the Museum’s permanent collection since opening in February 1998 – was targeted in 2021 when Te Waka Hourua held protests at the museum and Parliament demanding it be taken down. They claimed the exhibit misled visitors by implying it was a translation of the Maori‑language Treaty, which they allege affirms Maori sovereignty, while the English text asserts sovereignty was ceded to the Crown.

In September 2025, almost two years after the incident, the woman charged with graffiti vandalism was convicted and ordered to pay $1,500 in reparations to Te Papa.

What appeared to be an open‑and‑shut case against Te Wehi Ratana was set down for a jury trial on 30 March 2026. The potential penalties were significant: intentional damage can carry anything from a small fine to up to seven years’ imprisonment, while obstructing a police officer carries a maximum of three years’ jail and a $2,000 fine.

Then, as the trial approached, everything changed when a “statement of tikanga” (Maori custom) was submitted as expert evidence by the defendant’s uncle, former Maori Party co‑leader Te Ururoa Flavell, framing the protest, not as vandalism, but as a culturally justified response to institutional misinformation.

The end result was that Flavell’s nephew – the principal offender who actually did the damage – walked away without consequences, while a minor participant was convicted and fined!

The case not only demonstrated that the Crown was unwilling to put tikanga on trial, but it also highlights how the growing use of tikanga in the legal system is distorting outcomes and undermining the principle of equal justice.

In fact, when cultural assertions are used to override clear evidence and established legal standards, the Rule of Law itself is being undermined, eroding public confidence in the justice system.

The inclusion of tikanga in the 2011 Marine and Coastal Area Act is another example of how it is damaging the law.

In that case, by interpreting the legislation through the lens of tikanga, Judges allowed cultural considerations to over-ride the common law property rights tests that had been included in the law to restrict Customary Marine Title awards to the coast.

By overwhelmingly favouring claimants, their judgements irrevocably distorted the claims process. Instead of only applications in remote parts of the coast succeeding – as intended by Parliament – the entire coastline of New Zealand appeared likely to fall into tribal hands.

As a result, the Coalition Government stepped in to raise the bar and strengthen the tests, through an amendment that was passed into law late last year.

A decision in the first of the cases to be retried under the new law – a Customary Marine Title claim for parts of Ruapuke Island in Foveaux Straight – was released last month by Justice Churchman.

What it shows, however, is that with tikanga considerations still dominating the analysis, outcomes will continue to favour claimants.

At the heart of the amended law is a property rights test asking whether claimants have had exclusive use and occupation of their specified area from 1840 to the present day without substantial interruption.

The Churchman judgment explained the new requirements in the strengthened ‘exclusive use and occupation’ test: “This test will only be met if the applicant group or its members had both the intention and the ability to control the area to the exclusion of others…” And, “I may not draw any inference… based on a spiritual or cultural association… unless that association is manifested in a physical activity…”

While on the face of it the judgement appears to rule out any reliance on tikanga, the analysis shows that tikanga‑based evidence is accepted as proof of the statutory requirements: “I accept the evidence… that they have continuously exercised kaitiakitanga by both the application of tikanga principles to the conservation of the marine resources and the utilisation of various statutory provisions to control access…”

In other words, both kaitiakitanga and tikanga principles are treated as evidence of the group’s intention and ability to control the area — in spite of Parliament ruling out cultural considerations.

This same pattern continues throughout the analysis, including with regards to the key test of “exclusivity”, which is whether or not outsiders have used the area.

While the Judge acknowledges “there is no doubt that some commercial and non‑commercial fishing has taken place in the specified area”, he nevertheless concludes that “the applicant group has exclusively used and occupied the specified area since 1840.”

That conclusion cannot be reached using the ordinary meaning of “exclusive use”, which requires others to have been excluded. It is only possible if exclusivity is being interpreted through the tikanga concept of shared authority.

In other words, tikanga is still being used as the evidential framework through which the common law test of ‘exclusive use and occupation without substantial interruption’ is being met.

That means the success of the Ruapuke Island claim was not necessarily because the evidence met the standard Parliament thought it had set, but because the court has continued to interpret the standard through a tikanga lens that lowers the Customary Marine Title threshold.

If this approach continues – and there is no sign it will not – a pro-Maori judiciary will continue down their path of granting opportunistic tribal claimants title and control over vast areas of New Zealand’s coastline, despite the Coalition’s attempt to prevent them from doing so.

As a result, one thing is now unmistakably clear: Unless Parliament intervenes again, activist judges will continue to use tikanga to override statutory law and reshape outcomes in ways Parliament never intended. And that’s why the only solution is to repeal the Marine and Coastal Area Act and restore the 2004 Foreshore and Seabed Act.

This is the same pattern that’s on display in the Ratana prosecution: tikanga is being used not as cultural context but as a quasi‑legal override. It softens criminal accountability, reshapes statutory tests, and produces outcomes that Parliament did not intend. The judiciary and legal academics advancing this agenda are not merely interpreting the law – they are transforming it. And they are doing so without any form of democratic mandate.

This week’s NZCPR Guest Commentator, Queensland University Law Professor James Allan – formerly of Otago University – explains how it is no longer uncommon for judges to attempt to seize power without democratic mandate:

“Over last 30 or 40 years judges across the common law anglosphere world have become ever more willing to overrule the democratically elected branches of government. Call this a raw usurpation of power. Or call it judicial activism on steroids. The fact is that a hefty chunk of the top judges plucked from its members have adopted unconstrained and laughably implausible interpretive techniques. It’s bad in Australia, yes. But it’s worse in New Zealand. Worse again in Britain. Worse still in Canada. The US, oddly, has always had uber-powerful judges but of late has gone through a counter-cyclical period of relative judicial restraint. And then there is Israel’s top court. They are in a solar system – or more accurately a galaxy – of their own.

“The Israeli judiciary has gradually, over time, simply given itself this power to strike down the statutes of the elected legislature. There was no referendum giving it to it. There was no statute passed with a supermajority doing so. There was not even a statute garnering a bare majority of legislators bringing this massive change to the country’s rule of recognition into being. Nope, this was a judicial creation through and through.”

This is exactly what is happening in New Zealand. The embracing of tikanga is part of an attempt by the judiciary to re-write the laws of Parliament on their own terms.

But a legal system that delivers different outcomes based on ancestry, is not a system governed by the rule of law – it is a system governed by judicial preference.

Such a trajectory is constitutionally intolerable. If the rule of law is to mean anything in New Zealand, this parallel tikanga‑based jurisprudence must be confronted and dismantled before it becomes further entrenched.

The Coalition’s failure to address this critical problem – that they know exists – is inexcusable.

The judiciary has made it clear that expanding the reach of tikanga will continue – unless the law is rewritten in terms that leave no room for reinterpretation.

That’s why Parliament must act decisively to restore the rule of law, protect equal citizenship, and ensure that the courts apply the legislation intended by our democratically elected Parliament.

If New Zealand is to remain a country governed by one law for all, the following steps should be taken:

All open‑ended references to tikanga in our statutes must be removed or rewritten.

The Interpretation Act must be amended to prevent tikanga – a cultural doctrine that Parliament never authorised – being used as a default interpretive tool.

The Evidence Act should be amended to guarantee all defendants are held to the same legal standard, by preventing tikanga from being used as expert evidence to soften criminal liability and influence prosecution decisions.

And the New Zealand Bill of Rights Act should be strengthened to affirm equal citizenship and prohibit differential legal treatment based on race or ancestry.

Furthermore, to prevent control of New Zealand’s coastline from falling into private tribal hands, the Marine and Coastal Area Act must be repealed in the national interest, so the coast can once again be held by the Crown for the benefit of all New Zealanders. 

This country has already journeyed too far down the racial divide. If tikanga continues to operate as an unofficial parallel legal system the principle of one law for all will not survive.

A justice system that delivers different outcomes based on ancestry cannot command public confidence, and a Parliament whose laws can be rewritten by judicial preference cannot claim to be sovereign.

If the rule of law is to mean anything in this country, the creeping judicial elevation of tikanga must be dismantled. The integrity of our legal order, and the equality of every New Zealander before the law, depends on it.

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Dr Muriel Newman established the New Zealand Centre for Political Research as a public policy think tank in 2005 after nine years as a Member of Parliament. The NZCPR website is HERE. We also run this Breaking Views Blog and our NZCPR Facebook Group HERE.