A Role For Tikanga Māori In The Exercise Of Discretionary Power: A Critical Analysis Of The Interpretation Of Tiriti Obligations In Te Pou Matakana V Attorney-General

Abstract

Despite the long-standing question of the place of obligations under te Tiriti o Waitangi in the exercise of discretionary power, the courts are still reluctant to acknowledge their automatic application. It is well-established in the law of judicial review that Tiriti obligations are relevant to the decision-making process to the extent that they can be brought in on a Western legal basis. The judgment of Te Pou Matakana v Attorney General proved this point in relation to the relevance of Tiriti obligations in the provision of requested vaccination data of Māori residing in the North Island. In this paper, I argue that this was one of two paradigms open to Gwyn J to approach her discussion of the Ministry’s Tiriti obligations. The alternative approach was to adopt a tikanga-led discussion of whether the Ministry should have released the requested information. This approach would have strengthened tikanga as determinative law in New Zealand and assume life to Tiriti obligations. The more recent decision of Trans-Tasman Resources saw the Supreme Court taking the Western approach a step closer to the tikanga-led paradigm. Although Gwyn J acknowledged the importance of a tikanga-led discussion in her second decision, she left the place of tikanga in administrative law weak by not bringing it to the beginning of her process. Ultimately, this case is evidence that administrative law lacks behind in the recognition of the importance of tikanga-focused discussions in New Zealand law generally.