Kia Whakatōmuri Haere Whakamua: Implementing Tikanga Māori as the Jurisdictional Framework for Overlapping Claims Disputes

Abstract

This article addresses the misconception that overlapping rights to land are always in tension with one another. In this article, I apply a tikanga-based analysis to the policy on overlapping rights that is used in the settlement of historical Treaty of Waitangi claims. I argue that the supremacy of colonial law within the State legal system continues to suppress indigenous relationality and limit the mechanisms for reciprocity. This article problematises the following claims made about overlapping claims disputes. First, that overlapping rights are too complex for judicial resolution. This article examines the ways in which overlapping rights are capable of co-existing to preserve relationships between different iwi and hapū. Second, that tikanga is a contestable system of law and should not be regarded as a question of law or as a jurisdictional framework for resolving such disputes. This article critically analyses the extent to which these claims are based on the supremacy of colonial law within the State legal system by considering the application of tikanga in the courts and alternative dispute resolution processes. I argue that tikanga Māori is the only applicable framework whereby differences can be mediated in a way that preserves the relationships between the parties and provides redress mechanisms for continuing reciprocity. This article concludes that the State legal system at present continues to delegitimise indigenous relationality in ways that amalgamate rights into a colonial recognition framework, which fails to recognise tikanga Māori as an equal system of law in Aotearoa New Zealand.

Transitioning Environmental Governance In Aotearoa: Tikanga Māori And A Political Ethic Of Care

“…While information is not available publicly about the total number of recommendations implemented or actioned by the Crown, out of 43 recommendations made in WAI262 (2011) specific to natural resource governance, only one was implemented and two partially implemented by 2021 (SO7 2021). Furthermore, some of the processes related to the Waitangi Tribunal have been discussed as being problematic and unsustainable (Hayward and Wheen 2012;Mutu 2019;Morar 2021). For example, Treaty Settlement processes and outcomes often cause repeated issues for Crown-Māori relations but also intra-iwi relationships (Hayward and Wheen 2012;Morar 2021).…”

“…Furthermore, some of the processes related to the Waitangi Tribunal have been discussed as being problematic and unsustainable (Hayward and Wheen 2012;Mutu 2019;Morar 2021). For example, Treaty Settlement processes and outcomes often cause repeated issues for Crown-Māori relations but also intra-iwi relationships (Hayward and Wheen 2012;Morar 2021). The Crown's dominating presence and supremacy in some of the Tribunal processes and therefore continued control and power over the ways in which Māori rights and responsibilities can be actualised is a key reason for this, and continuous Te Tiriti breaches (Morar 2021).…”