Building on our previous think-piece on He Poutama focussed on tikanga concepts and environment law, we now consider how the tikanga concepts could be relevant to corporate and commercial matters.

Tikanga does not override statutory obligations nor the clear terms of a contract, at this stage at least. However, this is not to say that tikanga can never be relevant to corporate and commercial matters. For example, it may be relevant to the interpretation and application of statutory or contractual terms. As Justice Williams in the Supreme Court observed:^[1]

The result is that tikanga will be relevant when the facts suggest it is and the common law has not otherwise excluded it. Alternatively … it may be relevant where the common law in a particular area is developing and such development would benefit from a consideration of relevant tikanga principles.

At this stage, it is unclear where tikanga might be relevant to a commercial matter, but one area where it is more likely to be relevant is in the context of commercial arrangements with Māori commercial entities (such as a post settlement governance entity (PSGE) or Māori trust). Even if they have a commercial focus, these entities are often underpinned by the tikanga of the iwi, hapū and marae interests that they represent. This is particularly important where the commercial arrangements relate to land or other taonga (such as water or intellectual property) specific to a Māori entity.  

Moreover, we are increasingly seeing commercial and other clients proactively developing relationship agreements with Māori collectives (iwi, hapu and marae). The agreements sometimes  have a commercial element but invariably within the context of developing broad-based, long-term enduring relationships. These relationship agreements are becoming more sophisticated and increasingly expressly incorporate tikanga concepts, including in the context of commercial matters. It is critical to understand the relevant tikanga both in terms of how to develop the agreements, and what the tikanga terms in the agreement might mean.

In this sense, the tikanga concepts of whanaungatanga - “meaning kinship or a sense of familial connection and relationships”^[2] - and whakapapa - broadly understood “as a way of mapping knowledge”^[3] described in He Poutama as “structural norms” that shape Te Ao Māori are particularly relevant. These concepts “ensure that the order of things is properly understood and that connections to the natural world, place and people are acknowledged, maintained and nurtured”.^[4] Amongst other things, they would inform who should be involved in the development of an agreement and how the process should be conducted (eg to what extent should kaumatua be involved), and the form and scope of any contractual arrangements (eg is a standard dispute resolution approach appropriate).

For those wanting some guidance on how to engage with tikanga concepts in commercial arrangements, He Poutama steps through a case study on whanaungatanga in the context of a breach of a supply contract.[5] The case study involved six ahu whenua trusts which owned land and Whakapapa and whanaungatanga, among numerous other tikanga concepts are engaged by this case study. Whakapapa is engaged as all whānau whakapapa to each other.  Whanaungatanga is strongly engaged due to whakapapa, which generates responsibilties in terms of other  concepts such as aroha^[6] and manaakitanga^[7] to be shown to the whānau of the trusts affected by the cyclone. Further, kaitiakitanga responsibilties - “obligation of whānau, hapū and iwi to protect the spiritual and physical wellbeing of environmental resources in their care”^[8] - are engaged in relation to the whenua. 

He Poutama therefore is invaluable in helping understand tikanga issues that may arise in corporate and commercial matters, and provides guidance and insight into how these issues can be addressed. 

If you are interested in how tikanga concepts and Te Ao Māori could be relevant to directors’ duties, particularly in relation to determining the best interests of a company (see our article here).

As tikanga and corporate and commercial law continue to slowly weave together, He Poutama provides an important resource in assisting with understanding how tikanga can or should be engaged in commercial arrangements.

If you would like to discuss how tikanga may affect your corporate and commercial decision-making, please contact one of the experts below.

Special thanks to Sarah Gwynn and Avary Poutama for their assistance in writing this article.

He Poutama Series

Part 1: Weaving tikanga and state law together