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Case Law Review: The growing recognition that tikanga Māori requires
Far-reaching impacts
David Burton of Mahoney Horner Lawyers looks at a foundational case concerning New Zealand’s biculturalism. He highlights the growing recognition that tikanga Māori requires better implementation across our institutions and practices.
The case of Takamore v Clarke is not well known in employment law circles. But, this Supreme Court decision has laid the foundation for greater implementation of tikanga Māori in New Zealand’s legal system. The case concerned tensions between the application of the common law relating to burial and the application of tikanga Māori, but it is far reaching in its comments on the country’s legal development.
Claim for reinternment
The long-term partner of a deceased man sought an order for the recovery by her of his body. He had been buried in the Bay of Plenty without her consent by members of his Whakatohea and Tuhoe family in a family urupa in accordance with the tikanga observed by their hapū She and her adult children (of whom the deceased was their father) wanted him buried in Christchurch, where he had lived with them for 20 years.
A clash erupted between the hapū and family of the deceased, going all the way to the Supreme Court. The parties accepted that entitlement to bury someone who has died is not prescribed by any enactment and that the claims were to be decided according to the common law of New Zealand.
While the Court concluded that the partner of the deceased and her children were successful in their claim for reinternment, it was held that tikanga Māori and cultural identification were always an important consideration where it is raised, as are the preferences and practices that come with such identification, as affirmed in the New Zealand Bill of Rights Act 1990.
An important part of the legal framework
The Chief Justice noted that values and cultural precepts important in New Zealand society must be weighed in the common law according to how important they are in each case. She noted this was contemplated at the country’s legal conception in the English Laws Act 1858, which stated that the common law was introduced to New Zealand so far as applicable to its circumstances. This means that, while it has not previously been practised as such, tikanga Māori has been an important part of New Zealand’s legal framework since its inception.
The Court held that Māori custom or tikanga is a question of fact that requires the application of established traditions and values in the law, but is not to be subject to the same interpretation that the common law is. So long as the customs or values invoked are not contrary to the state or fundamental principles and policies of the law, the Court must take care in identifying the customs or values truly relevant to its determination.
Application to the workplace
Takamore v Clarke is significant because it shows that tikanga Māori is an essential consideration for a court to consider, including in the employment jurisdiction.
Exploring how HR professionals can effectively implement biculturalism remains an area of development. However, some instances have occurred that demonstrate what that could look like.
Judge Shaw, in the case of Good Health Wanganui v Burberry, noted that Māori matters should be integrated into the workplace, and it is not for employees to assert their mana Māori or plead for cultural identity to be recognised. The case demonstrates that workplaces, and the HR professionals who support them, should be taking proactive steps to integrate bicultural practices into the workplace.
Recognition grows
In a speech in 2019, the Chief Judge of the Employment Court noted that the good faith and reasonableness standards that pervade employment law should include cultural awareness. While this view may have been expressed in a speech, it provides us with a good indication as to the likely views that could be expressed by the Court in an appropriate case in the future.
Takamore v Clarke is a foundational case concerning New Zealand’s biculturalism and how it is to be implemented. It showed that tikanga Māori principles must be actively considered. What this looks like in practice will continue to develop. But this is likely to require active consideration of, and appropriate response to, cultural values and norms to ensure tikanga practices and values are present and integrated into workplaces through policies and practices.
It is also likely to mean that governance and management will come under more scrutiny in the future as the need for better recognition of tikanga Māori in the workplace grows.
David is a Principal at Mahony Horner Lawyers and has over 30 years Employment Law experience in New Zealand and overseas. David was formerly the Director of Cullen – The Employment Law Firm and for many years served on the Employment Law Committee of the New Zealand Law Society and prior to that appointment served on the Workplace Relations and Employment Law subcommittee of the Law Institute of Victoria, Australia.
David Burton is the Director of Cullen – The Employment Law Firm. David has over 30 years of employment law experience in New Zealand and overseas. His expertise is recognised by his peers.
For six years, he was appointed to the Employment Law Committee of the New Zealand Law Society. Before that, he served on the Workplace Relations and Employment Law Sub-committee of the Law Institute of Victoria, Australia.
