Structural norms
Tikanga law is embedded in social relationships
1. Whakapapa - the genealogical map that connects everything, this map is used to make sense of the past, present, and future
- Whanaugatanga - activated connections (and how to maintain them), acts as glue for the Māori world.
Prescriptive norms
Achieving and maintaining balance
- Mauri - Dignity and maintaining personal auronomy is what defines you
- Utu - reciprocity (always in a state of reciprocation); give back rather than take
- Ea - need to arrive and maintain balance (restore justice)
Relational norms
Status of an entity - your authority to act
- Mana (powers rights and resposnibilities)
- Tapu - (inherant worth of a thing may require protection, immunity (e.g. right to privacy)
- Noa (being in a state free from restriction)
Associated norms (responsibility)
Kaitiakitanga - obligations/responsibilities to the natural world
Manaakitanga - obligations/responsibilities in our relationships
Aroha - compassion, respect
Atawhai - kindness, caring
Processes and procedures
Rules that guide our behavior
- Pōwhiri (a welcome)
- Rāhui (a restriction)
- muru (a ritual of claiming compensation)
- Karakia (ritual prayer)
- Wanaga (airing issues or learning)
- Hohou i te roko (peace making process)
Why is learning about tikaka Maori important in NZ contract law?
- The growing Māori economy (set to reach $200b by 2030 and that currently makes up 9% of our GDP) means there is a high likelihood that when practicing law we will interact with Māori clients or deal with businesses that operate on Māori land
- It is crucial to be familiar with Tikaka values to allow the law of contract to work for Māori and their particular circumstances. This allows for business relations, ambitions, and dispute resolution to reflect tikaka values.
History of Maori commerce
Māori have always been in commerce, this is evidenced by geographically localised items arriving at other locations (e.g. pounamu, obsidian, feathers).
The North Island coastal tribes would trade fish and agricultural produce compared to the inland tribes where preserved bird skin/feathers and wood were traded.
Goods and services were also exchanged
Kaipoi was the trade capital of the south island where various tribes would bring their specialised goods
Systems of value: value is socially determined subjectively with regard to rarity, workperson ship, and need. Many colonialists believed indigenous populations don’t have a system of value but rather just value what resource is needed for survival - not the case at all.
Arrival of the Europeans: Māori quickly responded to this arrival as they recognised the economic opportunity. An example of this is the erection of potato and vegetable farms which fed Auckland, Dunedin, and Sydney. For context…some Hapu had more than 150 pounds ($20m).
Core procedures guiding Maori exchange
What determines the nature of the return gift?
- Not just valueable because of usefulness
- Socially determined (subjectively) with regard to rarity, workperson ship, and need.
- They don’t need to return the same thing. E.g. North Island iwi may give kai, south island may give pounamu.
What determines the quantity or value
- Equivilant value or greater value (may require delay)
- Exception: if one whanau has less resource then giving what they can may satisfy that (relative)
What compels a party to return or repay a gift?
- The obligation of whanaungatanga. Practical consequences too - lose a potential future exchange/opportunity to increase mana.
Why is there no sign of of Maori custom in NZ contract law?
1 Colonisation - European acquisition of land and power meant that European contract law was placed over any prior tikanga forms of contract law.
2 Incorporation - Contract law can incorporate values and practices, so can respond to Māori custom or values on a contract specific level without Māori input at the doctrine level;
Express terms: provide for inclution of tikanga (dispute resolution, kaikiakatnaga).
Example: CNI iwi holdings - had tikanga dispute resolution clause.
Implied terms: obligations informed by Maori thinking may be implied.
Incorporated terms: Trade custom, course of dealings (small group), private dictionary Trade that is informed by tikanga
When considering equitable remedies: Default is damages exception in sale of land it is specific performance.
Cowan v Cowan - principles of tikanga accord with equities reluctance to treat damages as adequate w/ land.
3 Contract law gives effect to cross-cultural shared values and thus gives effect to Māori values, but those values are not exclusively Māori values.
- Consideration: Mandy-Chen Wishhart
- Reciprocity is ageneralized moral norm, a deep intuition, and the foundation of human interactions.
Does contract law give effect to shared cross-cultural values?
- The doctrine of consideration distinguishes from gratuitous (one-sided) promises and exhange of promises (contract) which would have specific remedies. New develipments of consideration not being required? (idea of one-sided promise does not map to Tikanga as an obligation (utu) always arises).
- The absence of a general obligation of good faith (self interest vs tikanga obligations of whanagnatanga and manaakitanga);
- The sharp distinction between legally and morally binding promises/agreements
Example: lawful act duress, concerns commercial morality. (Second law starting point: onus on IP to fit exceptional arguement fro lawful act duress CF Tikanga where you look at the relationship and the obligations that follow from it) - Money damages as the default remedy for breach (remedies derive from obligations - tikanga obligations would inform different remedies);
- The concept of contractual privity (individualism vs tikanaga collectivism);
- Certainty as an element of contract formation.
Have unique contract law developments been influced by tikanga?
Contractual statutes - giving judical discretion
- Highly discretionary goes against the usual grain of certainty and aligns more with fairness/contextual analysis.
Pre-contractual negociations - highly contextual
- Development that produces a working result with tikanaga which has an emphasis on teh bigger picture and whakapapa.
Is this incorporation method satasfactory?
Essentially second law is allowing bits of the first law to get in however, on the second law’s terms. Second law using its own mechanism to decide when tikanaga can be used.
Transferance in Tikanga Maori
- Exchange (less significant for intra-communal relations e.g. with hapu, more significant with extra-communal relations e.g. other iwi. Exchange was a big way to transfer goods).
Exchanges included:
- Economic (e.g. exchanging of food).
- Ceremonial (exchanges that served a wider purpose outside of the mere exchanging e.g. maintaining social relationships. Might include hospitality to a certain group - exchanging something of value)
- Muru (transfer of goods from one group to another as a means for addressing a harm. Response of wrongdoing).
- Other means (e.g. tuku - gifting land with special conditions attached).
Core jural principles underpinning Maori and exchange?
- Utu (reciprocity) - Whatever one party gives mustbe reciprocated with a return ofequivalent or higher value (EXP: If the family is less wealthy)
- Whanaungatanga
- Mana
- Manaakitanga (encourage mana of someone else)
Discuss future directions (+ limitations)
Uses:
- Assist iwi in asserting tino rangatiratanga
- Passing laws
- Determine membership
- Collect taxes
- Enforce decisions
- Resolve disputes
Limitations:
- Cannot breach statutory provisions (state law remains supreme - not grounded on Maori knowledge/context)
- Cultural fit
Maori in contract law
Organisations governed solely by tikanga are unable to contract…
- To enter into a contract you have to enter as an individual or legally recognised entity (company, limited partnership, incorporated society etc).
- Issues arise as some Māori clients refuse to have a legally recognised entity represent them as this buys into state law and its assigned parameters
- Example: National Iwi Chairs Forum - did not want to therefore organised a trust as a fund holder
Whakataukī and whakatauākī in contract
Whakatauākī = able to trace the whakapapa (track down who said something)
Whakataukī = unable to trace whakapapa (do not know who said something)
Tikanga principles as ‘guiding principles’ of organisations are increasingly common e.g. manaakitanga, kaitiakitanga.
Relatively unusual to see tikanga principles used generally in contract,let alone whakataukī and whakatauākī.
Whakataukī and whakatauākī are primary clauses in Whāia Legal Employment contracts.
We are best guided by the words of our tūpuna
Tangihanga and Hura Kōhatu
Better recognises tikanga required as a result of mate (death).
Contemplate resposnibilities that arise in tikanga upon death of family.
Comparison: Intentionally less prescriptive than the provisions of the Holidays Act 2003 which permits:
Intellectual property and ‘carve outs’ for mātauranga
- Māori are increasingly concerned to protect what they create and māturanga in contract
- We draft contracts to ‘carve out; the application of intellectual property clauses to mātauranga, on the basis that mātauranga is incapable of ownership in tikanga
- The capacity of mātauranga to be ‘owned’ specifically has not yet been tested by the courts HOWEVER there is currently a claim before the waitangi tribunal concerning protection of Māori intellectual property.
Alternative dispute resolution
Near the end of every contract there are clauses setting out how disputes (raru) will be dealt with (often mediation, arbitration or court) tikanga is increasingly being seen in these clauses.
Shortfalls: there is always a back up clause of arbitration or courts
