Ko Tikanga Te Mātāmua: ngā pūrākau, ngā pakiwaitara, me mihi, ka tika

Abstract

This study highlights pūrākau and pakiwaitara as legal precedents that can bring Tikanga to life in unique ways. Using Kaupapa Māori and Mana Tāne methodologies, I address two problems within a larger project towards further normalising Tikanga within the legal system and legal education.

The first problem is the key misconception that there are two primary sources of law: statutes and common law. My proposed solution involves reconceiving three primary sources of law: Tikanga, statutes and common law. The second problem is how to source from Tikanga in making legal arguments. My proposed solution encourages story analysis of pūrākau and pakiwaitara and the use of these legal precedents within legal submissions. Accordingly, this study has two purposes.

In embarking on my journey of storytelling, I address the first purpose which is to test whether Tikanga is the first law and supreme law of Aotearoa, as was the seminal proposition of Ani Mikaere. This addresses the key misconception referred to above, that there are only two primary sources of law. Through analysis of Tikanga jurists and Western jurists I conclude Mikaere was right. Tikanga is the supreme law of Aotearoa: Ko Tikanga Te Mātāmua. I propose a new model called Te Whānau Ture as a legal family of three primary law sources representing this finding.

This research then addresses the second purpose in showing how ngā pūrākau me ngā pakiwaitara make valuable contributions to the body of law: me mihi, ka tika. Here, this study proposes a new model called, Whai Matua o Te Ture Māori, a symbolic stingray comprised of fourteen objects of Māori law. Later, I propose a further model Ātea Whakaaro, to enable ethical legal story analysis.

This study responds to (a) indigenising legal education, (b) the inevitability of Tikanga test cases and (c) the current Ao Mārama model. The significance of pūrākau and pakiwaitara in legal settings emerges from this study and a reclaiming of a Māori Legal Method becomes inevitable.