Since the 1970s, Māori culture and language have experienced a major renaissance in New Zealand, and claims relating to past grievances, self-determination, self-governance, and land and resource rights have also received increased and ongoing attention in the context of the relationship between Māori and the New Zealand government.  Underlying many of these issues is the fact that the Māori people have distinct systems, customs, and beliefs regarding their relationship to the land and other resources, as well as to each other.  The extent to which these customs are recognized and applied within the New Zealand legal system vary depending on the subject matter, and there are complex historical, legal, constitutional, and political circumstances that impact this situation.

This guide is intended to be a starting point for research on Māori customary law and its interaction with the common and statute law of New Zealand.  Much has been written on this and related subjects over the years, and the resources contained in this guide are by no means exhaustive.  We have focused on the most recent secondary materials, although publications from the past two decades (or more) are included.  In addition to setting out general resources, materials on some of the subject areas to which customary law may be relevant are included: land law, natural resources law, family law, and criminal justice.  Many of the resources are available in the collections of the Law Library of Congress, and the articles and papers referenced are also available online or accessible through subscription databases such as HeinOnline.

Various entities have previously compiled bibliographies of materials related to Māori customary law.  For example, the University of Waikato Library lists books and papers on different areas on its website: Māori Customary Law – A Bibliography, The University of Waikato: The Library.  The Bodleian Libraries at the University of Oxford also provide guidance and links to resources on Māori law and Māori land: New Zealand Law: Indigenous Law, Oxford LibGuides.  Several of the items on these websites are also included in the lists of materials contained in this guide.

Māori Customary Law and the New Zealand Legal System

Prior to European settlement, the individual Māori tribes of New Zealand had well-established governance arrangements, social structures, and systems of accepted norms and customs, generally referred to as tikanga Māori.  This included rules relating to trade and land rights, family relationships, protection of the environment, and conflict resolution.  According to a prominent Māori professor, “[t]ikanga Maori is the Maori equivalent of English law.”  She further explains that

[i]t derives from the very detailed knowledge gained from residing in a particular geographic area for many hundreds of years, developing relationships with other neighbouring communities as well as those further afield, and learning from practical experience what works and what does not. Not surprisingly, this body of law is very different from English law in how it is established, mainly because it cannot be reduced to writing and thereby set in concrete by legislation.

In 1840, when around five hundred Māori chiefs from different parts of the country signed the Treaty of Waitangi with the British Crown (the monarch), Māori remained the main population group in New Zealand, numbering about 125,000 compared to about 2,000 European settlers.  The chiefs were motivated to sign the Treaty due to various factors, including wanting to trade with Europeans, concerns about lawlessness amongst the settlers, and issues that were arising due to the lack of controls on sales of Māori land.  They agreed that the British should establish a colonial government in order to help to regulate the actions of settlers.

Most of the chiefs signed the Māori version of the Treaty.  The differences between the English and Māori versions have generated considerable debate over the years.  In particular, the first article in the English version purported to cede “sovereignty” over the land to the Crown, while the Māori version used the term kawanatanga, or governorship, in the same article.  The more equivalent Māori word for sovereignty is considered to be rangatiratanga, or chieftainship.  This term was in fact used in the Māori version of the second article, which guaranteed Māori tino rangatiratanga over their lands, villages, and treasured possessions (taonga).  In the English version this article gave chiefs “full, exclusive, and undisturbed possession” of their lands, forests, fisheries and other properties.  This article also provided that the Crown had an exclusive right to purchase Māori land.

It has therefore been stated that the chiefs did not object to the establishment of a colonial system of government and the import of English laws as a result of the Treaty, but also understood that tikanga Māori would be respected and remain within their control.  Although there were early attempts to take account of Māori customs in legislation and other actions, laws that incorporated tikanga were later repealed and the settler government’s assimilationist policies were progressed during the late nineteenth century and into the twentieth century.  During this time, various aspects of the Treaty were breached by the government, and it was even regarded to be a legal “nullity” for a period of time by the courts.

Anger over the breaches of the Treaty, particularly in relation to Māori land rights, led to a strengthening protest movement and increased public awareness in the 1970s and 1980s.  A number of significant legal developments occurred during this time and today the Treaty, which is now widely accepted to be a founding constitutional document, has a broad influence on the development of legislation and other government actions.  Developments included the establishment of the Waitangi Tribunal in 1975 to consider historic claims by Māori against the Crown, and the beginning of references in various pieces of legislation to the “principles” of the Treaty.  This latter approach allows the courts to consider the application of Treaty principles in any case related to the relevant legislation, which can therefore give rise to discussions about the interpretation and application of tikanga Māori.  The former Chief Judge of the Māori Land Court has stated that the Treaty of Waitangi in itself is authority for the idea that New Zealand law has “its source in two streams”—English law and tikanga Māori.  A number of statutes also now specifically refer to tikanga Māori and associated concepts, including in relation to land and other resources.

In addition to claims relating to obligations in the Treaty and those that arise through statutory references, Māori customary law may be recognized within the New Zealand common law system through the doctrine of aboriginal rights and the associated doctrine of aboriginal title.  Under the doctrine of aboriginal rights, customary laws or practices of a continuous nature may be granted the force of law by the courts and any associated rights enforced if they have not been extinguished by statute.  This approach has been applied by the New Zealand courts, which have held that “customs and practices which include spiritual elements are cognisable in a Court of law provided they are properly established, usually by evidence.”