Tikanga and Trespass

In recent years, the Supreme Court of Aotearoa New Zealand has invited Māori and non-Māori to consider how principles of tikanga may contribute to the development of the common law. Exactly how tikanga is meant to shape this domain was, however, left to the case-by-case incrementalism characteristic of the common law method. Since this invitation, there has been no application of tikanga Māori to the well-established torts, including trespass to land. Land is an issue of acute importance to Māori. This paper illustrates how tikanga may influence the development of the law of trespass. It argues that rōpū Māori using Crown lands for customary activities in accordance with tikanga have an interest recognisable at common law by reason of the Crown's obligations to Māori and pre-existing tikanga-based land use rights. This interest affords rōpū standing to sue third-parties in trespass and a defence to trespass claims by the Crown or its agents. Through close analysis of principles of tikanga and tort, the paper explains the nature of this quasi-possessory, quasi-usufructuary interest in land-akin to an equitable easement in Western legal termsexploring how qualifying interferences, defences, and remedies may be shaped in this context to properly account for tikanga-based interests.