How Tikanga Has Created a Major NZ Constitutional Issue
In a sharply argued and historically anchored piece for the New Zealand Law Review, legal scholar Peter Watts KC pulls no punches in his analysis of the Supreme Court’s 2022 decision in Ellis v R warning of a constitutional tremor shaking the foundations of New Zealand’s legal system.
The article is discussed in a review by Roger Partridge on his substack blog.
The Ellis case itself was relatively narrow, focused on whether Peter Ellis’s appeal continue despite his death? Neither Ellis nor the complainants were Māori, and tikanga wasn’t raised by either party.
But the Supreme Court, unprompted, brought tikanga into the fold, commissioning expert input and appending a “Statement of Tikanga” to its ruling. The majority then declared tikanga potentially relevant to any issue of common law or statutory interpretation.
That, says Watts, is a seismic shift — and not a legally justified one.
“The Court effectively declared tikanga relevant to any issue of common law or statutory interpretation that might arise before the courts… This was a sweeping change made without any jurisdictional connection to the facts before it.” (Watts, 49)
Before Ellis, the law around tikanga was far more constrained. Tikanga applied in specific areas — such as customary land rights or family matters with direct Māori involvement. And under the long-standing Loasby doctrine, for a custom to be recognized as law, it had to be certain, ancient, and reasonable.
Watts argues the Ellis majority effectively threw those rules out. He claims the decision defied core constitutional statutes — starting with the Supreme Court Ordinance of 1841 and reaffirmed by the Imperial Laws Application Act 1988 — which cemented English common law as the foundation of New Zealand’s legal system. He warns that the Court’s claim that English law is merely “presumptively dominant” is a constitutional fantasy.
“Abrogating the continuity of the Supreme Court Ordinance 1841 and the Imperial Laws Application Act 1988 would involve a constitutional moment for Aotearoa New Zealand… That would quintessentially be a task for the legislature, or a referendum, not the judiciary.” (Watts, 47)
Watts’ broader point is clear: judges do not have carte blanche to rewrite constitutional norms. He warns that the uncertainty created by Ellis — from who defines tikanga to how it varies regionally — creates chaos for lawyers, businesses, and citizens trying to navigate the legal system.
His call to action? Parliament must step in. Whether by reinstating the Loasby test or legislating a clear framework for the role of tikanga in law, the current constitutional free-fall needs a legislative parachute very soon.
