TIKANGA EXAM.docx-TIKANGA What is Tikang...
TIKANGA_EXAM.docx-TIKANGA What is Tikanga Maori? 
Showing 13 out of 28
TIKANGA EXAM.docx-TIKANGA What is Tikanga Maori? 
TIKANGA_EXAM.docx-TIKANGA What is Tikanga Maori? 
TIKANGA_EXAM.docx-TIKANGA What is Tikanga Maori? 
Page 13
In the
Court of Appeal:
Same outcome, different approach. Also took an applicaon to the
different tests and
- but said the HC reasoning was wrong,
even in the state system it is not about individual autonomy e.g. wills and probate.
Found it was unreasonable due to the "
might not right"
outcome that the outcome would
Refer back to Tono process– where a dispute as to where body is buried will end in
either consensus, compromise, or no resoluon.
Where there is NO RESOLUTION the
party with the greatest influence will come out on top
greatest influence essenally
means greatest physical influence.
CoA didn’t think this “might not right” outcome was
right and would set a precedent.
Focused on the "influence" over body test, worried about seng a precedent.
Also failed the certainty test for who gets to decide on the bury.
Took the "modern-approach" -
executor gets to decide but must take into
account the Tikanga
The reason this was unreasonable was because of the ‘might not right’ principle’: it was not right that
whoever had the most people or whoever was the ‘toughest’ could just take the body.
This goes against
Tono – where the 3
opon (where no one agrees) is whoever has the most power can take the body
Tikanga argument
Executor Rule- Executor has the right to decide
Observaon “Tikanga part of the values of NZ law”
only a consideraon. NOT
BINDING on the executor. Up to them to make the final decisions.
In relaon to burials in parcular,
established that kanga will apply if:
Executor agrees
No dispute about kanga
Tikanga dispute resolved between the pares in accordance with kanga – state law not called in to resolve
If there is a dispute and court finds kanga takes priority
Tikanga is simply a ‘consideraon’ for the executor
. This is in line with the Twinings idea of weak pluralism
. Here kanga is
recognised only when the dominant state law permits it to be recognised. if the executor of a will (a state law concept that is not
present in Tikanga Maori) does not wish to take Tikanga into account it will not be recognised. Tikanga and the rights of the
collecve are subordinate to the Western state system when it comes to burial rights. Tikanga and those who abide by it are not
offered uncondional legal protecon in the way that an executor under a will is.
Also refer to Jo Williams and the dangers of this level of Tikanga recognion
The whole idea of one law recognising another is fraught, because
if you are an advocate of pluralism, you
are really advocang for the connuaon of autonomous and separate legal orders, but forms of
recognion are oſten not seen to operate like this, forms of recognion tend to carry
assimilang/amalgamang tendencies
Williams discusses ‘integrate-to-perpetuate’ as a model of Tikanga recognion, in which Tikanga concepts
are incorporated into dominant legal processes, primarily through statute. Tikanga’s applicability and
recognion however is not absolute and has been argued as being discreonary.
There are posives of one legal system recognising another but this also raises the problem of giving one
system the status/posion from which to recognise another: Tikanga doesn’t need recognion by the state
nor does it want it if recognion by the state means something like ongoing assimilaon/amalgamaon.

Ace your assessments! Get Better Grades
Browse thousands of Study Materials & Solutions from your Favorite Schools
Vanderbilt University
Great resource for chem class. Had all the past labs and assignments
Leland P.
Santa Clara University
Introducing Study Plan
Using AI Tools to Help you understand and remember your course concepts better and faster than any other resource.
Find the best videos to learn every concept in that course from Youtube and Tiktok without searching.
Save All Relavent Videos & Materials and access anytime and anywhere
Prepare Smart and Guarantee better grades

Students also viewed documents