The Laws of Societies

Legal dualism is often a consequence of colonization. Some do it better than others.

Aotearoa (New Zealand).

In 2014, Te Urewera, an ancient forest, was legally recognized to have “all the rights, powers, duties, and liabilities of a legal person” as it was returned to the indigenous people who are connected to that land, the Tūhoe.¹ New Zealand recognized the rights and personhood of the Whanganui River, in 2017.² In March 2024, Indigenous leaders from across Polynesia³ recognized the legal personhood and rights of whales, signing the He Whakaputanga Moana (Declaration for the Ocean). In January 2025, New Zealand passed legislation, the Taranaki Maunga settlement, that sought to compensate for the violations of the Treaty of Waitangi through, in part, recognizing legal personhood in Mt. Taranaki, a sacred area of a sub-tribe of Maori.⁴ The Maori have made historic strides with New Zealand in the recognition of their own traditional worldview and Tribal Law, or tikanga.

The Maori are the indigenous people of New Zealand and have always had a strong resistance to colonization. Despite disease, war and genocidal policies, the Maori today, make up almost 20% of the New Zealand population.⁵ They have a dedicated university, self-governance and a Treaty protecting their land and status, at least increasingly so.

How then, are other colonized nations interacting with their Indigenous legal systems in their respective nations?

Comparing Dominant Legal Systems and how they work alongside Tribal Legal Systems

"Legal dualism" is a term in legal anthropology, referring to the concept of a society where two distinct legal systems operate simultaneously, often with one being the official state law and the other a parallel system of customary or informal law. When colonization has a legal system and Tribal Nations have a legal system, how can that work?

England and Colonization

Fiji Islands. In 2005, the Fiji Islands, a sovereign nation, with their population comprised of 40% indigenous Fijians, passed an Environmental Act. In order to get a copy of the act, I had to traverse the main island to the government printing office during a governmental “coup”.⁶ This statute adopted an Indigenous Fijian system of governance of the environment when bioprospecting was being conducted by scientists and companies. Within the framework of a British-based common law system, they had effectively used a very effective management system of the Fijians for managing the expansive coral reef life and health, as well as identifying families with responsibilities for each part of that ecosystem.⁷ This island was historically colonized by England, and while keeping the dominant legal structure based on British law, they have effectively adopted Indigenous laws into law at least in this one example.

Canada, also colonized by England, adopted British common law, and did not really begin to consider how the First Nations, Metis and other indigenous peoples of Canada would be considered under Canadian law. The First Nations system of laws and governance were largely ignored up until less than one hundred years ago, when the Canadian Supreme Court began to opine on the status of aboriginal land. Still today, the dominant legal system appoints “chiefs” in First Nations with whom they will interact; while the First Nations maintain their hereditary chief structure and governance takes place with these traditional leaders. This results in a two-tiered governance system with the “chiefs” the Canadian government regards as the seat of power are actually more ambassadorial in function.⁸ An example of this is the Wet’suwet’ en First Nation, and the pipeline controversy that ignored the hereditary chiefs, while using the government appointed representatives for liaisons between the First Nation and the Canadian government.⁹

The United States, also colonized by England adopted British common law. The U.S. began the recognition of Indigenous systems of governance by recognizing the sovereignty of Indian tribes in the U.S. Constitution as interpreted by the early opinions of the U.S. Supreme Court (1823, 1831, 1832).¹⁰ With the reservation system, there are geographic territories within which tribal law applies. There is also a complex system of subject matter jurisdiction that is distributed between tribal law, state and federal law (and this legal analysis varies from one Tribal Nation to the next). So where you are geographically and the legal subject matter will determine whether tribal law or state or federal law applies. This might look a bit like the cross section of a layer cake where some of the layers bleed into the next layer — a complex picture and a complex analysis of law.

So tribal law is not adopted by the dominant legal system; both systems of law operate in their own spheres. Metaphorically, Tribal law and Federal Indian Law are two ships passing in the night, except in this metaphor, the two ships see each other but do not interact, exchange goods or compare navigation instruments.

This is changing with the recently adopted water quality criteria that is part of the Clean Water Act, and Tribal Codes may adopt their own water quality criteria in implementing this federal statute.¹¹ It does not change the form of federal law, but it acknowledges Tribal Code as a standard.

France and colonization

In Tahiti Islands, historically colonized by France, the islands are still governed by France¹² and have a Civil Law system. In my interviews with Tahitian fishermen, they described their own system of laws with regard to how much they could fish, and territories demarked for fishing and specific species. They were largely unaware of the French system of fishing that was operating in a horizontal plane with the Native Tahitians’ system of governance. The French system of maps for fishing and allocations of fish takes was available in the local library, and no one I spoke with was aware of a plan or that they would have to visit the library to see it.

Advanced Legal Dualism in New Zealand

Returning to the recent legal actions in recognizing personhood in land, water and animals of the Maori people, New Zealand has truly integrated Tribal Law and traditions into the substance and process of the dominant legal system. When viewed through the models adopted by other colonized nations, New Zealand has taken the lead in finding ways to respect and incorporate Tribal Law into the dominant legal system.

Turning point in the recognition of Tribal Law

What must be a turning point in Aotearofa (New Zealand) is the recognition that an organized effort to examine how Tribal Law could be incorporated in the dominant legal system, after a Supreme Court decision turned on a point of law in Maori law.

Maori Law is called tikanga and in a case involving a Māori man, Peter Ellis, he was seeking to overturn his criminal conviction. Peter Ellis was convicted by the High Court at Christchurch of 16 counts of sexual offending. The accusations were a bizarre series of accusations of devil ritual type abuses, with questionable interview testimony from children, in something that was reminiscent of witchcraft trials. He petitioned the New Zealand Supreme Court to hear his appeal, although he had served his term in prison and was released, he wanted to “uphold his mana”. The question before the Supreme Court for argument was on whether an appeal should be allowed since Ellis had passed away. Arguments were on the question of whether tikanga should be taken into account.¹³

"In a tikanga context the death not only is not irrelevant ... but an ancestor has even more reputation to protect - is more tapu, has more mana. So the Māori perspective on this I would have thought would be opposite to the anglo perspective," —-Justice Joe Williams¹⁴

The Solicitor General, Una Jagose, had argued based on the proposition that “Ellis' interests died along with him, and there was no exceptional reason to continue the case.”¹⁵

Pioneering Study of How Tikanga and New Zealand Law can be Integrated

The Supreme Court case that had to consider whether upholding mana was a legal issue, in essence recognized controlling Tikanga or Maori Law.

In 2021, a study was commissioned by the Minister of Justice and led by Hon Justice Christian Whata. Chief Executive Professor Wiremu Doherty and distinguished professors Sir Hirini Moko Mead and Sir Pou Temara led the development of the professional study tool for the judiciary called, He Poutama. The study tool is 300 pages in length and examines “how tikanga relates to common law and state law, and how they all work together.”¹⁶ The study was completed in September 2023.¹⁷

Hon Justice Christian Whata says the study clearly shows the extent to which tikanga is influencing law.

“Throughout the project, we have been focused on the deep significance of tikanga to Māori and the importance for both tikanga and law of improving general understanding of tikanga while proceeding with care. We asked pūkenga (experts) to guide us and have aimed to give an account of tikanga for those engaging with it in a legal context that is both authentic and connected with the law.”¹⁸

In February 2024, a degree program in Tikanga Law was established, to further the understanding of the integration of Tikanga Law and New Zealand Law.

Final Thoughts

New Zealand has begun to turn around its past violations of the Treaty of Waitanga, the treaty that established it as a country and defined its relationship with the Maori, with these recent advances in pioneering efforts to analyze and integrate the legal system of the Maori (tikanga) into the dominant law of New Zealand. For that, they are to be commended.

1. https://www.legislation.govt.nz/act/public/2014/0051/latest/DLM6183705.html

2. https://www.npr.org/sections/thetwo-way/2017/03/16/520414763/a-new-zealand-river-now-has-the-legal-rights-of-a-human

3. Aotearoa (New Zealand), Tonga, Tahiti, Hawai’i, and the Cook Islands were among the signatories.

4. https://www.bbc.com/news/articles/czep8gg5lx4o

5. https://en.wikipedia.org/wiki/M%C4%81ori_people

6. A governmental “coup” in Fiji Islands is typically quite calm, I learned, and nothing violent — so while it sounds brave to traverse the jungle to get to a paper statute, honestly it was just a pleasant drive passing a few military jeeps!

7. Victoria Sutton, Custom, Tradition and Science in the South Pacific: Fiji's New Environmental Management Act and Vanua, Journal of South Pacific Law, Vol. 9, No. 2, 2005 at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2122676

8. https://www.sac-isc.gc.ca/eng/1323195944486/1565366893158#chp3

9. https://www.amnesty.org/en/latest/news/2022/10/canada-pipeline-indigenous-territory-endangers-land-defenders/

10. https://www.uaf.edu/tribal/academics/112/unit-1/marshalltrilogy.php

11. https://www.federalregister.gov/documents/2024/05/02/2024-09427/water-quality-standards-regulatory-revisions-to-protect-tribal-reserved-rights (Final Rule, 5-2-2024)

12. https://en.wikipedia.org/wiki/Tahiti As recently as 2009, a member of the royal family of Tahiti tried to re-assert Native governance and reclaim lands promised in a treaty signed with France in 1880, but, not surprisingly, France did not recognize this assertion. However the status of Tahiti was changed to an “overseas collectivity”.

13. https://www.nzherald.co.nz/nz/supreme-court-to-consider-whether-mana-important-in-peter-ellis-case

14. https://www.nzherald.co.nz/nz/supreme-court-to-consider-whether-mana-important-in-peter-ellis-case

15. https://www.nzherald.co.nz/nz/supreme-court-to-consider-whether-mana-important-in-peter-ellis-case

16. https://www.wananga.ac.nz/experience/news/changing-the-law-for-aotearoa-new-zealand/

17. https://www.lawcom.govt.nz/about-us/news-and-media/new-study-provides-invaluable-guidance-on-tikanga-and-the-law/

18. https://www.wananga.ac.nz/experience/news/changing-the-law-for-aotearoa-new-zealand/