Justice Minister Goldsmith Signals Potential Overhaul of Tikanga Māori in Law

Justice Minister Paul Goldsmith has indicated that the New Zealand government may consider removing references to tikanga Māori from legal rulings, citing concerns over potential impacts on investment. Speaking at a Law Association event, Goldsmith expressed anxiety about the development of a “bespoke” legal system that incorporates Māori customs and practices, which he believes could create confusion for international investors.

During his address, Goldsmith highlighted the need for a clear legal framework that aligns with international standards. He stated, “A clear, internationally recognised legal system is very important and I’m worried about the extent to which we’re going down this bespoke New Zealand view of the world.” His remarks were reported by RNZ and Law | News on October 4, 2023.

The Minister emphasized that the government is “absolutely prepared” to legislate over judicial rulings if necessary, in order to clarify legal interpretations. He pointed to ongoing reviews of references to the Treaty of Waitangi in legislation, which may lead to more consistent language or even the removal of those references altogether.

Goldsmith’s stance has drawn criticism from advocates for Māori rights, including Lady Tureiti Moxon, chair of the National Māori Urban Authority. Moxon described the government’s approach as an overreach, arguing that legal interpretation should remain within the courts’ purview. She stated, “Just because they don’t like something or a decision that’s been made by the courts, they’re empowering themselves to be able to just change it at will.” Moxon emphasized that such measures undermine the partnership established by the Treaty.

In a follow-up conversation with RNZ, Goldsmith reiterated the government’s willingness to override court decisions if deemed necessary, citing previous actions taken under the Marine and Coastal Area Act. This act was introduced despite a Supreme Court ruling last year that challenged the rationale for such changes.

Goldsmith acknowledged that the inclusion of tikanga Māori in legal discussions represents a “unique strand” of New Zealand’s legal landscape but cautioned that the evolving nature of the legal system could jeopardize predictability. He stated, “Such serious, long-term investment requires predictability and certainty in our institutions.”

He further explained that a legal system incorporating unique features could deter foreign investment, as potential investors may find it difficult to navigate an unclear legal landscape. “If they look at the law, and can’t be clear what it means or what the outcome will be… then it’s obvious what will happen,” he said. “They’ll take their money elsewhere and that’s a problem for New Zealand.”

The conversation around the integration of tikanga Māori into the legal framework has sparked significant debate. Former Attorney-General Chris Finlayson responded to Goldsmith’s comments by suggesting that the Minister’s remarks were exaggerated. Finlayson noted that the courts have not been overly radical in their interpretation of treaty principles and that the government should focus on refining the clarity of legislation instead of introducing new tests or altering the burden of proof.

He stated, “I should hardly think that some would-be investor in New Zealand is going to be put off investing because of some treaty clause in a piece of legislation.” Finlayson acknowledged that while some references to treaty obligations may be vague, the courts have primarily addressed issues with good faith and consultation with iwi.

As New Zealand grapples with these complex legal questions, Goldsmith’s remarks signal an ongoing debate about the balance between respecting Māori customs and maintaining an attractive legal environment for investment. The future direction of legislation surrounding tikanga Māori remains uncertain, as the government continues to evaluate its approach to these critical issues.

In response to the growing concerns, Goldsmith indicated that more developments in this area are anticipated. He stressed the importance of ensuring that the intent of legislation remains clear and that the government is prepared to act decisively to maintain the rule of law in New Zealand.