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  "description": "If the rule of law is to mean anything in this country, the creeping judicial elevation of tikanga must be dismantled. The integrity of our legal order, and the equality of every New Zealander before the law, depends on it.",
  "path": "/tikanga-on-trial/",
  "publishedAt": "2026-03-17T19:30:30.000Z",
  "site": "https://goodoil.news",
  "tags": [
    "New Zealand Centre for Political Research"
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  "textContent": "At the Wellington District Court on 10 March 2026, charges of _intentional damage_ and _obstructing police_ against the protester who defaced Te Papa’s Treaty of Waitangi exhibit in 2023 were dismissed.\n\nThe Crown Solicitor decided that, in spite of there being sufficient evidence to prove the charges, proceeding with the case was _not in the public interest_ , and he requested the charges be _withdrawn_ under section 146 of the Criminal Proceedings Act 2011.\n\nJudge Noel Sainsbury, however, noting that ‘withdrawal’ left the door open for a further attempt at prosecution at a later stage, determined that a more permanent end to the matter was required, and he _dismissed_ the charges under section 147 of the Act.\n\nThe law breaking had occurred just before lunch on December 11, 2023, when a group of Te Waka Hourua protesters disguised as workers wearing hi-vis vests and hard hats entered Te Papa and proceeded to the “Signs of a Nation” exhibition, with its floor-to-ceiling display of the English text of the Treaty.\n\nOne of the group abseiled from the roof of the museum and, using an angle grinder and spray paint, defaced the exhibit, destroying most of the words to leave only, in Article 2, “Her Majesty the Queen of England is the alien”, and in Article 3, “ration the Queens veges”.\n\nPolice were called and 12 people were arrested.\n\nThe 29-year-old abseiler, Te Wehi Heketoro Ratana, was charged with intentional damage, obstructing police, and a breach of bail. He was remanded in custody.\n\nA 53-year-old woman, Catherine Murupaenga-Ikenn, was charged with intentional damage – later reclassified as graffiti vandalism.\n\nAnd a 46-year-old man and a 52-year-old woman were both charged with a breach of bail.\n\nEight others were arrested for trespass and escorted outside the building. They were released without charge.\n\nThis was not their first attempt to remove the installation. The display – part of the museum’s permanent collection since opening in February 1998 – was targeted in 2021 when Te Waka Hourua held protests at the museum and parliament, demanding it be taken down. They claimed the exhibit misled visitors by implying it was a translation of the Māori‑language Treaty, which they allege affirms Māori sovereignty, while the English text asserts sovereignty was ceded to the Crown.\n\nIn September 2025, almost two years after the incident, the woman charged with graffiti vandalism was convicted and ordered to pay $1,500 in reparations to Te Papa.\n\nWhat appeared to be an open‑and‑shut case against Te Wehi Ratana was set down for a jury trial on 30 March 2026. The potential penalties were significant: _intentional damage_ can carry anything from a small fine to up to seven years’ imprisonment, while _obstructing a police officer_ carries a maximum of three years’ jail and a $2,000 fine.\n\nThen, as the trial approached, everything changed when a “statement of _tikanga_ ” (Māori custom) was submitted as expert evidence by the defendant’s uncle, former Māori Party co‑leader Te Ururoa Flavell, framing the protest, not as vandalism, but as a culturally justified response to institutional misinformation.\n\nThe end result was that Flavell’s nephew – the principal offender who actually did the damage – walked away without consequences, while a minor participant was convicted and fined!\n\nThe case not only demonstrated that the Crown was unwilling to put _tikanga_ on trial, but it also highlights how the growing use of _tikanga_ in the legal system is distorting outcomes and undermining the principle of equal justice.\n\nIn fact, when cultural assertions are used to override clear evidence and established legal standards, the Rule of Law itself is being undermined, eroding public confidence in the justice system.\n\nThe inclusion of _tikanga_ in the _2011 Marine and Coastal Area Act_ is another example of how it is damaging the law.\n\nIn that case, by interpreting the legislation through the lens of _tikanga_ , judges allowed cultural considerations to over-ride the common law property rights tests that had been included in the law to restrict Customary Marine Title awards to the coast.\n\nBy overwhelmingly favouring claimants, their judgements irrevocably distorted the claims process. Instead of only applications in remote parts of the coast succeeding – as intended by parliament – the entire coastline of New Zealand appeared likely to fall into tribal hands.\n\nAs a result, the coalition government stepped in to raise the bar and strengthen the tests, through an amendment that was passed into law late last year.\n\nA decision in the first of the cases to be retried under the new law – a Customary Marine Title claim for parts of Ruapuke Island in Foveaux Straight – was released last month by Justice Churchman.\n\nWhat it shows, however, is that with _tikanga_ considerations still dominating the analysis, outcomes will continue to favour claimants.\n\nAt the heart of the amended law is a property rights test asking whether claimants have had _exclusive use_ and _occupation_ of their specified area from 1840 to the present day without substantial interruption.\n\nThe Churchman judgment explained the new requirements in the strengthened ‘exclusive use and occupation’ test: “This test will only be met if the applicant group or its members had both the _intention_ and the _ability_ to control the area _to the exclusion of others_ …” And, “I may not draw any inference… based on a spiritual or cultural association… unless that association is manifested in a physical activity…”\n\nWhile on the face of it the judgment appears to rule out any reliance on _tikanga_ , the analysis shows that _tikanga_ ‑based evidence is accepted as proof of the statutory requirements: “I accept the evidence… that they have continuously exercised _kaitiakitanga_ by both the application of _tikanga_ principles to the conservation of the marine resources and the utilisation of various statutory provisions to control access…”\n\nIn other words, both _kaitiakitanga_ and _tikanga principles_ are treated as evidence of the group’s intention and ability to control the area – in spite of parliament ruling out cultural considerations.\n\nThis same pattern continues throughout the analysis, including with regards to the key test of “exclusivity”, which is whether or not outsiders have used the area.\n\nWhile the Judge acknowledges “there is no doubt that some commercial and non‑commercial fishing has taken place in the specified area”, he nevertheless concludes that “the applicant group has exclusively used and occupied the specified area since 1840.”\n\nThat conclusion cannot be reached using the ordinary meaning of “exclusive use”, which requires others to have been excluded. It is only possible if exclusivity is being interpreted through the tikanga concept of shared authority.\n\nIn other words, tikanga is still being used as the evidential framework through which the common law test of ‘exclusive use and occupation without substantial interruption’ is being met.\n\nThat means the success of the Ruapuke Island claim was not necessarily because the evidence met the standard parliament thought it had set, but because the court has continued to interpret the standard through a _tikanga_ lens that lowers the Customary Marine Title threshold.\n\nIf this approach continues – and there is no sign it will not – a pro-Māori judiciary will continue down their path of granting opportunistic tribal claimants title and control over vast areas of New Zealand’s coastline, despite the coalition’s attempt to prevent them from doing so.\n\nAs a result, one thing is now unmistakably clear: Unless parliament intervenes again, activist judges will continue to use _tikanga_ to override statutory law and reshape outcomes in ways parliament never intended. And that’s why the _only_ solution is to _repeal_ the Marine and Coastal Area Act and _restore_ the 2004 Foreshore and Seabed Act.\n\nThis is the same pattern that’s on display in the Ratana prosecution: _tikanga_ is being used not as cultural context but as a quasi‑legal override. It softens criminal accountability, reshapes statutory tests, and produces outcomes that parliament did not intend. The judiciary and legal academics advancing this agenda are not merely interpreting the law – they are transforming it. And they are doing so without any form of democratic mandate.\n\nThis week’s NZCPR guest commentator, Queensland University Law Professor James Allan – formerly of Otago University – explains how it is no longer uncommon for judges to attempt to seize power without democratic mandate:\n\n> Over last 30 or 40 years judges across the common law anglosphere world have become ever more willing to overrule the democratically elected branches of government. Call this a raw usurpation of power. Or call it judicial activism on steroids. The fact is that a hefty chunk of the top judges plucked from its members have adopted unconstrained and laughably implausible interpretive techniques. It’s bad in Australia, yes. But it’s worse in New Zealand. Worse again in Britain. Worse still in Canada. The US, oddly, has always had uber-powerful judges but of late has gone through a counter-cyclical period of relative judicial restraint. And then there is Israel’s top court. They are in a solar system – or more accurately a galaxy – of their own.\n>\n> The Israeli judiciary has gradually, over time, simply given itself this power to strike down the statutes of the elected legislature. There was no referendum giving it to it. There was no statute passed with a supermajority doing so. There was not even a statute garnering a bare majority of legislators bringing this massive change to the country’s rule of recognition into being. Nope, this was a judicial creation through and through.”\n\nThis is exactly what is happening in New Zealand. The embracing of _tikanga_ is part of an attempt by the judiciary to re-write the laws of parliament on their own terms.\n\nBut a legal system that delivers different outcomes based on ancestry, is not a system governed by the rule of law – it is a system governed by judicial preference.\n\nSuch a trajectory is constitutionally intolerable. If the rule of law is to mean anything in New Zealand, this parallel _tikanga_ ‑based jurisprudence must be confronted and dismantled before it becomes further entrenched.\n\nThe coalition’s failure to address this critical problem – that they know exists – is inexcusable.\n\nThe judiciary has made it clear that expanding the reach of _tikanga_ will continue – unless the law is rewritten in terms that leave no room for reinterpretation.\n\nThat’s why parliament must act decisively to restore the rule of law, protect equal citizenship, and ensure that the courts apply the legislation intended by our democratically elected parliament.\n\nIf New Zealand is to remain a country governed by one law for all, the following steps should be taken:\n\nAll open‑ended references to _tikanga_ in our statutes _must_ be removed or rewritten.\n\nThe Interpretation Act must be amended to prevent _tikanga_ – a cultural doctrine that parliament never authorised – being used as a default interpretive tool.\n\nThe Evidence Act should be amended to guarantee all defendants are held to the same legal standard, by preventing _tikanga_ from being used as expert evidence to soften criminal liability and influence prosecution decisions.\n\nAnd the New Zealand Bill of Rights Act should be strengthened to affirm equal citizenship and prohibit differential legal treatment based on race or ancestry.\n\nFurthermore, to prevent control of New Zealand’s coastline from falling into private tribal hands, the Marine and Coastal Area Act must be _repealed_ in the national interest, so the coast can once again be held by the Crown for the benefit of _all_ New Zealanders.\n\nThis country has already journeyed too far down the racial divide. If _tikanga_ continues to operate as an unofficial parallel legal system the principle of one law for all will _not_ survive.\n\nA justice system that delivers different outcomes based on ancestry cannot command public confidence, and a parliament whose laws can be rewritten by judicial preference cannot claim to be sovereign.\n\nIf the rule of law is to mean anything in this country, the creeping judicial elevation of _tikanga_ must be dismantled. The integrity of our legal order, and the equality of every New Zealander before the law, depends on it.\n\nThis article was originally published by the New Zealand Centre for Political Research.",
  "title": "Tikanga on Trial",
  "updatedAt": "2026-03-17T19:30:29.832Z"
}