Supreme Court considers the place of tikanga in recent seabed mining case

The place of tikanga in the legal system of Aotearoa has been receiving increasing attention of late, including by the Supreme Court in the recent case of Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127.

The case related to Trans-Tasman Resources Ltd’s desire to mine iron sands in an area within New Zealand’s exclusive economic zone in South Taranaki and its application for consents under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act). The Court, in dismissing the company’s appeal, set out its position on the correct approach to a number of provisions of the EEZ Act.

Particularly notable points included findings to the effect that:

• Treaty of Waitangi clauses, including the clause in the EEZ Act require a “broad and generous construction” to their interpretation. The Court concluded that “[a]n intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear.”
• Tikanga was discussed, with the Court finding that tikanga based customary rights and interests constituted “existing interests” when considering “any effects on the environment or existing interests of allowing the activity” under a section in the EEZ Act. Further, the Court also concluded that, drawing on the approach to tikanga in earlier cases, tikanga as law must be taken into account as “other applicable law” under another section of the EEZ Act, “where its recognition and application is appropriate to the particular circumstances of the consent application at hand”.

The case marks a significant development at a time when tikanga is becoming progressively more intertwined into the legal system of this country. A key question to grapple with moving forward is likely to include the approach if an aspect of tikanga differs between groups of Māori.

It is clear that the implications of increased recognition of tikanga as law are likely to be substantial, not only for the public sector, but also beyond this to, for example, Māori and Māori entities. Such developments are therefore important to keep abreast of.