Nu Tireni · Evidence Series · Part 26 · 2022–2024

Ellis and Smith: what does it mean that tikanga was the first law of Aotearoa?

The Supreme Court now recognises tikanga as the first law of Aotearoa and as an influence on the common law, but that recognition operates within the present New Zealand legal order rather than as an automatic parallel sovereign jurisdiction.

Tikanga recognised within common law

Modern jurisprudence has moved substantially beyond the assumption that the only legally meaningful system in Aotearoa is imported English law.

In Ellis v R (Continuance), the Supreme Court accepted that tikanga was the first law of Aotearoa and that it continues to influence New Zealand's distinctive common law where relevant. In Smith v Fonterra, the Supreme Court reiterated that proposition and confirmed that tikanga may be unavoidable in the development and application of common-law causes of action.

But the Court has not converted that recognition into a rule that Māori individuals can elect out of Parliament's statutes or establish a parallel criminal jurisdiction whenever tikanga differs from enacted law. Statute and binding precedent remain capable of controlling the result.

This matters because the constitutional picture is no longer accurately described as “English law replaced Māori law.” A more precise description is that the colonial state asserted a dominant legal order, while tikanga persisted and is now increasingly recognised as a source within New Zealand law and as law in Māori communities in its own right.

Recognition of tikanga weakens the old claim of total legal replacement. It does not, by itself, reopen the judicially settled question of state sovereignty.

Primary, judicial and official sources

Courts of New Zealand — Ellis v R [2022] NZSC 114 case material ↗

Courts of New Zealand — Smith v Fonterra [2024] NZSC 5 ↗

New Zealand Law Society — Tikanga Māori and recent legal developments ↗