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For some time, the courts of Aotearoa have shown an increasing willingness to have regard to tikanga Māori in resolving disputes.1 But since the Takamore v Clarke decision in 2012, the Supreme Court has not had the opportunity to confront this issue directly, and potentially broaden its reach.
The Supreme Court’s decision in Trans-Tasman Resources Ltd v Taranaki Whanganui Conservation Board, released on 30 September 2021, is now an authoritative endorsement of the momentum towards greater inclusion of tikanga Māori in the law of Aotearoa.
The appellant, Trans-Tasman Resources Limited (TTR), sought consents in order to mine the seabed and extract iron sands off the coast of Taranaki. The Environmental Protection Authority (EPA) granted TTR consents, with some conditions. Following a challenge from the Taranaki-Whanganui Conservation Board, iwi interests and others, the EPA’s decision was set aside in both the High Court and the Court of Appeal.
The Supreme Court unanimously dismissed the appeal, agreeing the High Court and Court of Appeal were correct to quash the EPA’s decision. The majority also agreed that the EPA should have taken tikanga Māori into account in making its original consent decision, because of the important and elevated status of tikanga and Te Tiriti o Waitangi in the law of Aotearoa.
Two key tikanga findings
Two sections of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act) drove the Supreme Court’s analysis about tikanga:
- section 12 lists ways the Crown can achieve its responsibility to give effect to Treaty principles, and
- section 59 provides the EPA must take into account any effects on the environment or existing interests, including any “applicable law”.
The Court agreed that a decision under section 12 requires a “broad and generous construction” of the Treaty. Such a broad and generous construction meant that tikanga-based customary rights and interests constitute “existing interests” for the purposes of the EEZ Act, including kaitiakitanga and rights claimed (but not yet granted) under the Marine and Coastal Area (Takutai Moana) Act 2011.
Drawing on the approach to tikanga in earlier cases such as Takamore v Clarke, all members of the Court agreed that tikanga as law must be taken into account by the EPA as “other applicable law” under section 59 where its recognition and application is appropriate to the particular circumstances of the consent application.
It appears the Court considered there are a broad set of circumstances where tikanga would be an applicable law in and of itself, as opposed to viewing tikanga concepts through a “Pakeha lens” or through the traditional test for native title. In particular, Williams J noted there would have to be “very good reason” to find that long-standing and practically expressed values such as mana, whanaungatanga and kaitiakitanga were not relevant to a decision-maker.
A significant decision
The Court’s position gives new life and momentum to the tikanga practiced by whānau, hapū and iwi specifically for the protection of te taiao (the environment) and moana (the ocean).
There is no longer any ambiguity as to whether tikanga is capable of applying as law (and not simply a value informing the law) – the question decision-makers should ask themselves now is whether the circumstances dictate that tikanga is an existing, and therefore applicable, existing law. This assurance also likely means the EPA and any marine consent authority must keep itself informed to be in a position to recognise where tikanga exists, and how it might affect or constrain its decision-making.
More broadly, the Supreme Court’s decision is also noteworthy for finding the EEZ Act imposes an effective environmental “bottom line” – if the environment cannot be protected from material harm through regulation, then the discharge or dumping activity must be prohibited. This stronger protection of marine resources ties in appropriately with the operationalisation of tikanga as an applicable law under the EEZ Act, which is a legal framework built upon the philosophy of sustainable management.
1 See for example, Ngawaka v Ngati Rehua-Ngatiwai Ki Aotea Trust Board [2021] NZHC 291 at [43]-[44], [47]; Mercury NZ Limited v Waitangi Tribunal [2021] NZHC 654 at [103]-[104]; Sweeney v Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181 at [75]; Ngāti Maru Trust v Ngāti Whātua Ōrākei Whai Māia Ltd [2020] NZHC 2768.
