The High Court recently considered the role of tikanga in regard to issuing an enforcement order.

The enforcement order was sought by the Trustees of a Māori land trust for a debt of over $10 million which was owing to the Trust by a former Trustee. The current Trustees requested the enforcement order require the sale of two of the former Trustee’s properties in order to repay the debt. The former Trustee argued that the enforcement order would be contrary to tikanga.

The former Trustee argued that the sale of the properties would effectively leave her “homeless”, and this was inconsistent with representations made by a current Trustee that they would not do so.

Further, it was argued that this was inconsistent with the tikanga concepts of whakapapa (genealogy), turangawaewae (place to stand), whanaungatanga (kinship) and tino rangatiratanga (self-determination). Removing the former Trustee from her home was said to be likely to interfere with her turangawawae, and whakapapa connection to the land. The former Trustee sought for a tikanga-based resolution to the dispute, such as negotiation with the Trustees.

The Court did not accept the former Trustee’s argument. The Judge found that while tikanga was applicable to matters involving Māori land trusts, tikanga did not support the former Trustee’s position in this case. Given the degree of misconduct by the former Trustee, and the extent of the debt owing, tikanga principles supported the current Trustees taking the enforcement action.

The judgment notes that the principles of hara (transgression), muru (restorative justice or punishment), utu (reciprocity) and ea (balance, harmony) were also relevant, and supported the Trustees pursuing the enforcement order to restore balance to the Trust, and uphold their responsibilities under tikanga to the land.  This process of reconciliation was an important part of tikanga, and strongly supported the current Trustees’ case.

The Court also noted that there was insufficient evidence that enforcing the sale of the former Trustee’s properties would impact on her turangawaewae and whakapapa to the land. There was no evidence provided that demonstrated that the former Trustee was a member of any iwi or hapū who were recognised as having an interest in the land that the properties were on. The Judge also pointed out that regardless of this fact, tikanga alone could not act as a shield for the unresolved claims of the Trust.  

 

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