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How should the law recognise tikanga Māori in resolving disputes?

Resolving disputes according to tikanga Māori is different to the way people resolve disputes through the formal court process in New Zealand.

Māori place importance on the whānau. If there is a dispute about property at the end of a relationship, it might concern the whānau and not just the individual partners or their children. The support of whānau members is important as individuals resolve their differences.

There may also be other tensions within Māori social organisation, like conflicting whānau loyalties and differences in tikanga between iwi. People with responsibility within the whānau, hapū and iwi understand these tensions. They are often experienced mediators.

The outcome of a dispute may also be very different in tikanga Māori. In tikanga Māori, it may be more important to recognise the status and contribution of each partner and then find a way of accommodating the interests.

These cultural differences may mean that some Māori rarely use the courts to enforce their rights. Instead, they may prefer to manage their own disputes within the whānau, hapū or iwi according to their own processes.

We want to know what could help Māori resolve disputes according to tikanga Māori. For example, should there be greater support for mediations based on traditional Māori values that respect te reo, tikanga, kawa, and the role of the whānau.

What do you think?

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When Māori take their property disputes to the courts, sometimes the partners argue about what tikanga Māori means. In those cases, the courts must be able to decide how to apply tikanga Māori.

Sometimes, the Family Court receives evidence from kaumātua, kuia or academics. But are there other ways?

The Family Court could appoint its own experts, pūkenga and kaumātua as cultural advisers to assist. Or those pūkenga and kaumātua could be full members of the court in some cases and decide the case jointly with the judge.

It may be better if the Family Court did not hear the case. Instead, the Māori Land Court or the Māori Appellate Court could hear the case. These courts have specialist knowledge in Māori land and tikanga Māori. They also have flexible procedures that are less formal, apply marae kawa and encourage te reo Māori.

But the Māori Land Court and Māori Appellate Court do not have experience with family law issues. A solution might be for a Māori Land Court or Māori Appellate Court judge to sit in the Family Court with the Family Court judge when a case involves issues of tikanga Māori.

What do you think?

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