Positionality, Methodology, and Method

Co-author 1: Xavier Walsh

I am a PhD student in Māori Studies at Waipapa Taumata Rau–University of Auckland with tangata Tiriti (Treaty person), namely, having Sri Lankan, Irish and British, ancestry. As a non-Indigenous researcher, I recognise myself as tangata Tiriti having the position, perspectives, and rights for myself in Aotearoa NZ being derived from He Whakaputanga and Te Tiriti. My background and experience with the world of work come from my intersecting position as a worker and co-president of Unite Union, the national hospitality union in Aotearoa NZ. Given the ethical and broader political issues of this research, I am aware of the need to ‘be particularly conscious of the politics and implication of one’s research’ (Voloder Reference Voloder, Voloder and Kirpitchenko2013, 10).

Co-author 2: Daniel Hikuroa

I am a researcher based at Waipapa Taumata Rau–University of Auckland with Māori (Indigenous) and Pākehā (settler) ancestry, and I draw from Kaupapa Māori practices in undertaking my scholarship. My background and experience relevant to this article lie in the application of tikanga in research.

Together, we are aware of some of the personal limitations of our research and the need to listen to and prioritise Māori voices in our work. Our scholarship aims to challenge Western-centric views and ensure that tikanga Maori is authentically and accurately represented. Our collaboration ensures that co-learning, consideration, self-reflexivity, and relationality are at the heart of our work, and it actively guides our research standpoint. We also note that Te Tiriti is a relationship that requires the joint responsibility and duty of both the Crown and rangatira, requiring both parties to uphold our nation’s founding document, and so our work is a collaborative effort in this sense as well. Having a Māori supervisor and tangata Tiriti student relationship and the nature of this research are examples of our collaboration.

This paper takes the form of a review. As such, the method utilised relies predominantly upon analysis of secondary sources such as relevant library catalogues, databases, book and journal articles, and occasional legal blog posts and academic writing in the media. We read widely across a variety of academic disciplines to limit bias during data collection, and we also acknowledge the current lack of collected data and legal cases. Also, we would urge other non-Indigenous scholars and practitioners who wish to pursue understanding in this nascent field to be cautious given the historic and ongoing issues within our context, one of imperialism and colonialism (see e.g. Smith Reference Smith2021).

In relation to industrial relations theory, this paper utilises a radical pluralist approach to analyse and understand the role of workers in relation to their work by assuming that conflict exists in the employment relationship, which often does not favour working people (Watson Reference Watson2017). This has been justified in part by the first co-author’s experiences with the world of work and in representing workers in their trade union role.

This paper has been intentionally structured to follow the evolution of Aotearoa NZ law as detailed by the now-Supreme Court Justice Joe Williams in his well-respected Henry Harness lecture Lex Aotearoa (Williams Reference Williams2013). Therein, Williams describes three laws of Aotearoa NZ and their influence in attempting to map the Māori dimension in modern laws, these being:

• Kupe’s law, the first law of Aotearoa.

• English law, the second law of New Zealand.

• The third law of Aotearoa NZ, a modern-day weaving of the previous two.

Tikanga Māori: Kupe’s law – First law of Aotearoa

Prior to the British colonisation of Aotearoa NZ, the first law of Aotearoa – Kupe’s law – was brought across the vast stretches of Te Moana-nui-a-Kiwa, the Pacific Ocean, in a legal system guided by kinship-based values that is often referred to as tikanga Māori (Williams Reference Williams2013). As Mead (Reference Mead2016, 19) notes, while tikanga Māori is often defined legislatively as Māori customary values and practices, a deeper and more meaningful understanding is found in his following definition: ‘tikanga refers to the ethical and common law issues that underpin the behaviour of members of whānau, hapū and iwi [Indigenous social units] as they go about their lives and especially when they engage in the cultural, social, ritual and economic ceremonies of their society’.

Recent decades have seen continual emphasis on tikanga Māori within the Aotearoa NZ legal system, particularly within criminal and land law. For example, section 9(2) of the Criminal Cases Review Commission Act 2019 requires at least one member of the Commission to have knowledge or understanding of te ao Māori and tikanga Māori. Additionally, section 2 of the Resource Management Act 1991 specifically defines kaitiakitanga (guardianship) in relation to environmental management issues. These examples are but two of the wider applications of tikanga Māori within the legal system of Aotearoa NZ, which indicates a further opportunity to explore a potential tikanga Māori approach that considers the multidimensional nature of Aotearoa NZ workplaces and personal grievances therein.

As a values-based approach towards dispute resolution, a take–utu–ea framework is a prime example of the kind of solution Chief Employment Court Judge Inglis (Reference Inglis2021) has previously called for. Furthermore, a recent High Court judgement stated that ‘it is now well accepted that tikanga is part of New Zealand’s common law’ (Mercury NZ Limited v Waitangi Tribunal [2021] NZHC 654, para 103). Now, tikanga-centred cases have become increasingly evident. Within the employment law sphere, the recent GF v Comptroller of Customs (2023) NZEmplC 101 case is the first of its kind where neither party was Māori, the employee nor the employer. However, the New Zealand Customs Service was seen to be in breach of its duty of good faith and did not act as a fair and reasonable employer. This was because tikanga Māori had been incorporated generally. The argument that it applied solely to Māori did not hold up to scrutiny, particularly in regard to the institution’s Te Tiriti obligations. It should be noted that within the public service, good faith obligations are heightened as a result of the Public Service Act 2020.

Given these recent developments, it is timely for the issue of tikanga Māori within employment dispute-resolution processes to be considered. A whakatauākī (Māori proverb) may provide answers. It reads: ‘Taku ahi tūtata, taku mata kikoha; taku ahi mamao, taku mata kiporo’ (When my fire is close by, the point of the weapon is sharp, but when the fire is distant the point is blunt) (Mead and Grove 2001, 355 as cited in Mead Reference Mead2016, 266). As these distant ‘fires’ (read: issues) come closer to home, it is vital that we sharpen our wits to deal with forthcoming matters. As noted, these cases have become increasingly common. The legal sector itself has noted the need for law students to understand and have some knowledge of tikanga Māori to be able to engage in critical and reflexive practice of the discipline. These understandings must also translate into employment law and broader industrial relations matters.

Current processes fail to respond to and restore the mana (power, authority, status) of both parties, the wronged and wrongdoer, and not simply the wronged whose mana was diminished. In te ao Māori, it is all parties to a dispute who are harmed when conflict arises, which has a flow-on effect to the tapu (sacredness) and mauri (life force) of those whose mana has been diminished (see e.g. Mead Reference Mead2016). As such, a take–utu–ea framework is a potential avenue for redress for all parties to the employment relationship (employees, employers, and others such as trade unions), as it has been a means of redress that has served Māori well for centuries. Bennett and Kopu (Reference Bennett and Kopu2020) explain that in employment law, a good faith approach requires substantive justification and procedural fairness. However, this is not to say that mamae (hurt) and whakamā (embarrassment) cease once a decision is made, particularly in severe scenarios such as termination.

This was further addressed at the 2022 NZ Employment Law Conference in which Bennett et al (Reference Bennett, King, Kopu, Dalziel, Anderson, Riki, Davenport, Howard-Brown, Jamieson and Service2022), in summary, explain the following points: first, that employment law is built on relationships, as is te ao Māori (the Māori world) and tikanga. Second, that adopting a te ao Māori approach and incorporating tikanga not only enhances employment law, given its natural alignment with a good faith approach, but also has the potential to incorporate mana-enhancing, rather than mana-depleting processes. Lastly, that tikanga, as in other jurisdictions, had a patchy application in employment common law.

It is important to emphasise employment relationships are plagued with power imbalances that benefit employers over employees (see e.g. Marx Reference Marx1990). Notably, the Aotearoa NZ’s industrial relations framework – the Employment Relations Act 2000 (ERA 2000) – explicitly acknowledges this wherein it promotes good faith ‘by acknowledging and addressing the inherent inequality of power in employment relationships’ (section 3(a)(ii)).

In his formative work, Lex Aotearoa, Williams (Reference Williams2013) outlines the following tikanga Māori values as having particular importance within the law generally, and this may extend to employment law:

• whanaungatanga or the source of the rights and obligations of kinship;

• mana or the source of rights and obligations of leadership;

• tapu as both a social control on behaviour and evidence of the indivisibility of divine and profane;

• utu or the obligation to give and the right (and sometimes obligation) to receive constant reciprocity; and

• kaitiakitanga or the obligation to care for one’s own. (3)

However, one of the best arguments for applying tikanga Māori as an extension of good faith is made by Bennett and Kopu (Reference Bennett and Kopu2020). Together, they restate that the ERA 2000 does not refer explicitly to a definition of good faith; rather, it requires responsiveness and communication between the parties, with the aim of being active and constructive to the relationship. Thereby, the legislation leaves a wide berth of interpretation. They then add that te ao Māori, through tikanga Māori, provides a constructive response to the ‘birth of interpretation’ (Kopu & Bennett 2020, 3). Furthermore, they argue that this is because tikanga Māori has relationships and values at its heart and provides a foundation in which parties to the employment relationship may measure their compliance with the duty of good faith. It must be noted that Shelley and Kopu (2020, 3) conclude with the following warning:

Take–utu–ea is a tikanga framework for resolving wrongdoing and seeking rebalancing or repairing of relationships (see e.g. Mead Reference Mead2016). There is a basic concept and expectation within both te ao Māori and te ao Pākehā (settler world and worldview) that a dispute-resolution process should follow when a grievance arises, although there are most certainly differences as to what both worldviews expect when such an issue arises. Oftentimes within a te ao Pākehā framework, this is seen more as a restorative practice model that seeks to restore balance where it has been disturbed (see e.g. Consedine Reference Consedine1999). What using tikanga does inherently well is ensure a form of ‘modern Māori justice in action – restorative, healing and reconciling’ (Consedine Reference Consedine1999, 82). In the case of personal grievances, tikanga Māori may offer integrity and greater well-being for individual workers, employers, whānau (families), and communities, and that mana and the relationship may possibly be protected and/or restored.

As a better, further explanation of the concept of take–utu–ea, formative expert Mead (Reference Mead2016, 31) asserts:

The benefit of using such a tikanga Māori framework over the current more adversarial approach is that it better helps to fully realise the duty of good faith. It also provides a means of enhancing the mana of all parties to the employment relationship when wrongdoing occurs. Many often think utu and ea refer to the act of achieving revenge; however, the concept more accurately refers to securing peace between both parties. Thereby, it is possible to understand the role of utu and ea within the employment relationship. As this tikanga framework begins with a cause, ‘take’, it elevates the tapu, requiring a response, ‘utu’, and finally reaching a state of balance again, ‘ea’ and ‘noa’, a safe level of tapu (Mead Reference Mead2016), there is the possibility of using take–utu–ea to better understand and mend employment relationships when resolving personal grievances.

Building on Marxist critiques of labour, there is a clear historical origin for personal grievances. Despite their name signifying that they are an individual employment relationship problem, personal grievances are, in fact, derived in part from the introduction of waged labour as a result of the colonisation of Aotearoa NZ (see e.g. Miller and Ruru Reference Miller and Ruru2009; Mutu Reference Mutu2019). Additionally, in its current form, capitalist labour exists because of complex historic and ongoing socio-politico-economic upheaval (see e.g. Marx Reference Marx1990), particularly due to colonisation in the Aotearoa NZ context (see e.g. Poata-Smith Reference Poata-Smith2001). Settler colonialism commodified labour (Marx Reference Marx1990; Poata-Smith Reference Poata-Smith2001). In the context of Aotearoa NZ, this is best exemplified by the drastic reduction in Māori landholdings from the entire land mass of 26.8 million hectares down to 3.4 million hectares by 1921 (Locke Reference Locke2010a). The newly emerged class of propertyless Māori were subsequently forced to enter the capitalist labour market. This process was ‘not gradual or harmonious, rather it involved brutal dispossession, violence and destruction’ (Poata-Smith Reference Poata-Smith2001, 80).

The now-repudiated Doctrine of Discovery was a legal principle devised by the Roman Catholic church in the fifteenth century that ‘provided religious authority for Christian empires to invade and subjugate non-Christian lands, peoples and sovereign nations, impose Christianity on these populations, and claim their resources’ (Hunt Reference Hunt2023). While recognising the vast number of Christian faiths party to the colonisation of Aotearoa NZ, this later emboldened British settlers to engage in myth-making and active engagement with white supremacy, with their myths ultimately being required to justify the dispossession of the country and hence livelihood and well-being, ultimately usurping Māori power and authority (Mutu Reference Mutu2019). Charters (as cited in Hunt Reference Hunt2023) even goes as far as to explain that the Doctrine of Discovery is the only basis upon which the Crown could claim sovereignty in 1840 – a justification similar to that used in Australia.

Furthermore, there are some similarities between English experiences of enclosure – the appropriation of common land – and the Māori experience of ongoing dispossession of land driving them into capitalist wage labour (see e.g. Poata-Smith Reference Poata-Smith2001). Workers have been intentionally made to engage with a system of work that is designed to negatively harm them and create structural grievances, which then in turn at times manifest as personal grievances (see e.g. Marx Reference Marx1990). Generally, there is a cycle of violence and abuse, the roots of which lie in oppression and intergenerational and system-induced trauma for Māori and all workers due to capitalist and colonial systems (Walsh Reference Walsh2023).

Personal grievances: English law – Second law of New Zealand

After the arrival of Captain Cook and subsequent settlement, which saw the displacement of Māori and their tikanga, the second law introduced to New Zealand in the nineteenth century was one based more on classical libertarian values of individual autonomy, rather than kinship. According to this worldview (at least in theory), important economic relationships were entered into as defined by contracts with individuals exercising their self-determination through free choice (Williams Reference Williams2013). The Lockean concept of property had come to define the relationship between autonomous individuals and their capital, with law and government justifiable only as a mechanism to protect private property (Williams Reference Williams2013). Particularly in the post-Industrial Revolution era and within the context of Aotearoa NZ’s colonisation, these concepts also expressed themselves within employment relationships and the world of work. Much of the systems of work as it is currently understood began with the subjugation of workers to become wage labourers and the direct exploitation of their labour, thereby creating systemic grievances of workers against capitalism (see e.g. Marx Reference Marx1990; Poata-Smith Reference Poata-Smith2001; Walsh Reference Walsh2023).

The Hegelian lord–bondsman (or master–slave) dialectic exists to understand that true self-consciousness can only be achieved through an external, objective test of self-consciousness among a series of other self-consciousnesses, as such Hegel (Reference Hegel1977, 111) writes:

In essence, he states that the self-conscious’s identity is intimately entangled with other self-consciousnesses, whereby one’s own state of self-consciousness is dependent on recognition by other self-consciousness; therefore, it has essentially lost itself. So, one’s own self-consciousnesses may only recognise its own feelings, desires, and power, when drawing comparisons to other’s self-conscious’s feelings, desires, and power. Thereby, it is through comparing other self-consciousness to one’s own self-conscious that there may be recognition of what it does or does not have. This lord–bondsman dialectic is interpreted as focusing on the recognition of hierarchical social dynamic power imbalances, whether that be worker–employer, men–women, coloniser–colonised, and so on. In this way, one’s own self-consciousness can recognise that it is the oppressor or the oppressed, the ‘have’ or the ‘have nots’, and as a step towards liberation.

Wage labour is inherently exploitative within the current capitalist mode of production. There is an underpinning requirement for growth, often manifested by the insistence on business profit maximisation and worker productivity, which comes at the expense of low or stagnant wages and heightened hours of work. This results in an inherent ‘race to the bottom’ ensuring working peoples receive the ‘short end of the stick’ (see e.g. Walsh Reference Walsh2023). This partially forms the basis of understanding that capitalism is exploitative to workers, and one manner in which workers may manifest resistance is that employees may raise personal grievances against their (former) employers. However, the current system for personal grievances maintains exploitative processes rather than enabling structural change for workers against employers within the world of work.

Neoliberalism (as defined in Aotearoa NZ by government economic restructuring in favour of privatisation, removal of state subsidies, and instituted ‘user-pays’ systems (see e.g. Smith 2023, 110) has yet again been a continuation of this system. Workers’ rights have been rapidly degraded, with little-to-no return in the decades since. This can be seen in examples such as the lack of strength that unions possess today following the introduction of the anti-union industrial relations framework, the Employment Contracts Act 1991 (ECA 1991; see e.g. Locke Reference Locke2010b). In some ways, this is comparable to how the Doctrine of Discovery is used to continually strengthen self-perpetuating myths of white supremacy, such as how the Waitangi Tribunal exists not to fully redress Treaty of Waitangi breaches, but instead allows for systemic Crown sovereignty to continue (see e.g. Charters Reference Charters2022a). By adopting some, not all, pro-worker and pro-Māori legislative ‘wins’, these systems are able to satiate the anger of the masses while simultaneously upholding their power, thereby limiting true liberation from oppression. The notion of ‘winners’ and ‘losers’ exists within any adversarial grievance process, including structural colonial grievances.

Personal grievances form part of the systemic issue of work wherein worker exploitation is the cause of these grievances. As tikanga Māori is ‘a comprehensive philosophical framework from within which relationships were negotiated and disputes resolved’ (Mikaere Reference Mikaere2011, 96), it offers a proven way forward in which these issues may be both addressed and mitigated and relationships restored. Employment relationships and the emphasis on difference are a human construct, yet whakapapa binds all things, with ‘the primal relationship of love for and with Papatūānuku. Because she is Mother’ (Jackson Reference Jackson and Kiddle2020, 140). So, following a relationship dispute, issues are resolved ‘because in whakapapa no relationship is ever beyond repair’ (Jackson Reference Jackson and Kiddle2020, 14); this is tikanga Māori, a restoring of balance to relationships.

Returning to personal grievances and their current form, the ERA 2000 legislative reform was led by then-Minister of Labour (now-titled Minister for Workplace Relations and Safety) Margaret Wilson, who was a professor of law specialising in public policy, employment law, and dispute resolution and an early proponent of teaching interest-based alternative dispute resolution in law schools (Morris Reference Morris2015). This new legislation intended to transform ‘employment dispute resolution from a litigious, competitive model to a collaborative, consensual model’ (Morris Reference Morris2015, 206). Perhaps there should be questions as to the true efficacy of this process given that it may not have been as successful as intended. What is clear though is the alignment of the legislative intent with tikanga Māori.

Furthermore, the key objective of government-provided mediation services, the Employment Mediation Service, is to provide a service, in an oft-repeated phrase by then-Minister of Labour Margaret Wilson (Reference Wilson2000), that is ‘free, fast, and fair’. This sentiment is reaffirmed by former Department of Labour (now Ministry of Business, Innovation and Employment) mediator Peter Franks (as cited in Chauvel & Spackman Reference Chauvel and Spackman2005) as he states: ‘Mediation services are intended to be pro-active rather than being the ambulance at the bottom of the cliff’ (13). This reiterates that employment mediation, per the Object of the ERA 2000, is intended as a primary problem-solving mechanism, rather than the more tertiary intervention-type legal machinery that characterised the preceding industrial relations framework of the ECA 1991 (Wilson Reference Wilson2000).

In practice, what this means is that a worker can raise a personal grievance with their current or former employer for a series of reasons, including for being:

• unjustifiably ‘disadvantaged’ in their employment.

• discriminated against on one of the prohibited grounds.

• sexually or racially harassed.

• subjected to duress due to membership or non-membership of a union or an employees’ organisation. (Employment New Zealand 2023)

An employee may raise a grievance against their (current or former) employer by raising the issue and the reasons for it, preferably in writing. For example, an employee may raise an unjustifiable disadvantage grievance where their employer did not address an issue that made it harder for the employee to do their job properly, such as in instances where bullying or harassment occurred (Employment New Zealand 2023). While the mediation process is generally irrelevant to the broader argument, what is important is the continued emphasis on good faith within these processes and employment relationships generally. With increasing biculturalism (or multiculturalism) in the daily lives of people in Aotearoa NZ, tikanga has become increasingly prominent. It follows, therefore, that an aspect of good faith for employers must be engaging more with their understanding of tikanga concepts and practices. Although prior to the GF v Customs, Inglis (Reference Inglis2021, 212) herself also notes that:

The use of the language regarding ‘threads of law’ was an argument recently re-popularised during the Ellis v The King [2021] NZSC 114. Therein, the appellant’s lawyer, Natalie Coates, responded on whether tikanga Māori was relevant to a case regarding Peter Ellis, a non-Māori man, by using the Pōtatau Te Wherowhero quote noted at the beginning of this paper, in an emphatic ‘yes’. It is therefore possible that one may better contextualise the law as needing to weave the previous two laws of Aotearoa NZ – Kupe’s law and English law – to create a new third law of Aotearoa NZ as mooted by Williams (Reference Williams2013).

Inherent to our current systems and models of work is the notion that employment relationships are the domain of two parties engaging in a series of contractual agreements. This is a far cry from the reality. Employment relationships involve a wider group than those directly involved, including co-workers, whānau, and communities. Tikanga Māori may be able to provide opportunities that both restore and uplift the mana of all parties. So, if there is a system available that may potentially be more efficacious, cost-effective, and less damaging to involved parties, it seems logical and prudent to make it widely available.

Future of workplace personal grievances: Third law of Aotearoa New Zealand

From the 1970s onwards, and continually affirmed by recent legislation and rulings, the third law of Aotearoa New Zealand sees remaining Māori custom incorporated into legislation and key spheres of daily life (Williams Reference Williams2013). Currently, and especially within recent employment law rulings, there is a movement towards a paradigm shift: employee–employer relationships are based on mutual values and not merely contractual obligations, with whanaungatanga being a guiding value within this process. This reiterates that within tikanga Māori, there is an imperative to maintain and restore relationships.

In te ao Māori, whanaungatanga connects all things through whakapapa (Mikaere Reference Mikaere, Belgrave, Kawharu and Williams2005). Māori cosmogony informs us of the establishment of the first female–male union of Papatūānuku and Ranginui as the primal parents. Williams (Reference Williams2013) further posits whanaungatanga as the ‘fundamental law of the maintenance of properly tended relationships’ (4). In traditional Māori society, whanaungatanga was not just related to emotional and social ties between people and the environment. It was also just as importantly related to economic rights and obligation. Formative Māori legal scholar Moana Jackson (Reference Jackson, Oddie and Perrett1992, 5) explains that:

Prior to colonisation, the efficacy of tikanga was measured through the exercise of rangatiratanga, which was ‘a total political authority’ (Jackson Reference Jackson, Oddie and Perrett1992, 5). In the modern day, He Whakaputanga and Te Tiriti reaffirm this authority. Since they do not exist within a vacuum, employment grievances must enable employees to engage in their own self-determination. Within an employment context, the take–utu–ea tikanga Māori framework does this by rebalancing some of the social, economic, and, to some extent, political power employers have over employees.

As previously mentioned, recent legal decisions have favoured this ‘weaving’ of common law and tikanga Māori, recognising the inherent need to understand and engage with different worldviews within the Aotearoa NZ legal system. In a 2001 study paper, subsequently updated, expanded, and researched again in 2023, the New Zealand Law Commission advocated for a more substantial recognition of tikanga Māori within the current legal framework, even intentionally going as far as to disregard Crown sovereignty (see e.g. Mikaere Reference Mikaere, Belgrave, Kawharu and Williams2005).

Further to this, as noted by Durie (Reference Durie2005), today, Aotearoa NZ has entered its fourth era with its political ideology being marked by its ‘reduction of state, devolution and deregulation’ as well as a ‘commitment to the Treaty of Waitangi’ (95), although that commitment is questionable. This is especially true as this current era is also marked as oscillating between policies of assimilation and policies of retention and development of Māori interests – although this changes depending on the government of the day. Nevertheless, as statute, the ERA 2000 injects much flexibility into the current industrial relations framework, enabling the law to be applied in a manner that responds to developments in the systems of work and society in which this work occurs (Inglis Reference Inglis2021).

While likely unnecessary, legislative change would likely only need to be in the form of an amendment to the ERA 2000, which could allow for tikanga Māori-based processes. However, the flexibility of the current industrial relations framework allows tikanga Māori to be used in some capacity already, such as in personal grievance mediation. However, the future seems clear: there must be a movement to improve personal grievance processes, and tikanga Māori may provide a meaningful solution. This not only improves outcomes for working people and their communities as well as employers but also helps uphold the internationally recognised and inalienable right of Māori to tino rangatiratanga as prescribed by Te Tiriti.

Although this is all far from new: as detailed within the Commentary to the Employment Relations Bill and Related Petitions 2000, multiple groups have been calling for the use of tikanga Māori within the process, including Māori trade unionists, for well over 20 years at the very least. As tikanga Māori becomes increasingly utilised in the Aotearoa NZ legal system, it seems clear that this is the path forward. However, recent scholarship has increasingly moved towards questioning Crown sovereignty’s legitimacy and legality. There is a relationship between employment law and practice, as well as questioning constitutional arrangements and their appropriateness.

In these respects, Claire Charters (Reference Charters2022a) has attempted to both explain and refute the Crown’s claim to sovereignty using tikanga, British, and international law by exposing the conflicting narratives of colonisation and their modern impacts. While not an explicit theme, like those often found in industrial relations research, there is a narrative of power that may be related to the issue of personal grievances. Charters (Reference Charters2022a) begins her discussion on what Moana Jackson (National Library of New Zealand nd) referred to as the colonial construction of ‘myth-takes’; ‘that is deliberately contrived falsehood about their being’. It is these falsehoods that have inherently prevented mainstream legal scholars from engaging in discussions around the Crown’s legitimacy to power, as well as the sense of collective amnesia many in Aotearoa NZ have. In particular, she points to the myth that New Zealand has been ‘good to Māori’. Rather, it has inherently harmed its psyche and needs to be ‘myth-busted’ (Charters Reference Charters2022a). Furthermore, she goes as far as to describe the Crown’s claim to sovereignty under prerogative power as being contrary to well-established British common law at the time and might, therefore, be described as ‘illegally legal’.

In addition, by pointing to Mikaere’s work, Jackson (Reference Jackson2005) states that current attempts to limit the rights of Indigenous people to self-determination reflect that colonisation is the present lived reality of our global societies. In Aotearoa NZ, the mistranslated text of Te Tiriti, which is the English text of the Treaty of Waitangi, has been wrongfully debated. Mutu (Reference Mutu, Mulholland and Tawhai2010) rightly asserts that the notion that rangatira (chiefs) would cede their tino rangatiratanga and their taonga (treasures) to the Queen of England is not only bizarre but also humanly, logically, and politically impossible. This is because the mana of a rangatira, their ultimate power and authority, is derived from atua (gods) and is not ‘transferable’.

Rather, Moana Jackson (as cited in Charters Reference Charters2022b), in reference to the Te Paparahi ō Te Raki (Wai 1040) claim, concludes:

Accordingly, because of these ‘legal myth-takes’ and questions of narratives driving sovereignty, it is inherently power – not law – that will resolve the questions related to sovereignty in this nation (Charters Reference Charters2022b). For it is ‘power’ that is oftentimes what industrial relations seek to understand also. By understanding the concepts of power, one may begin to unpack the reality of the employment relationship in its current state.

The Matike Mai Aotearoa (2016) report sought to understand how a constitution that upholds He Whakaputanga and Te Tiriti through ‘genuine constitutional transformation’ would be possible rather than the current Westminster-derived constitutional arrangement. The report lays the foundation for genuine constitutional transformation in a manner that expresses the right of Māori to make decisions for Māori by Māori, in other words – tino rangatiratanga. Constitutional transformation is not far removed from understanding the potential role of tikanga in mediating personal grievances. Instead, it is part of a wider series of changes likely necessary to legitimise and facilitate wider discussions on genuine constitutional transformation. If small movements can be made to change the current colonial system of oppression, then steps should be made to ensure such movement.

Further to this, Charters (Reference Charters2022a) notes that to reconcile two people and two legal orders, more work needs to be done to overcome current everyday issues to ensure an inclusive Aotearoa for all that inhabit it. This means that the supposedly ‘little issues’, like personal grievance processes and understanding the effects of colonisation on systems of work, educating others, allowing space for understanding, and rectifying issues with the current system, are of vital importance.

Conclusion: Where to next?

As had been made clear: ‘Tikanga regulated the lives of Māori when the first European settlers arrived in Aotearoa New Zealand. It has never ceased to do so’ (Ellis v The King, para 168). If there is to be reconciliation between two peoples and two legal systems, then that commitment must be whole, including in seemingly minor aspects of the law such as workplace personal grievances. As the New Zealand Law Commission (2001) points out, in the conclusion of their study paper of Māori customs and the law, that:

Furthermore, the New Zealand Law Commission’s (2023) recent study paper reaffirms and offers more evidence by introducing the concept of ‘te ihonui’, in which pūkenga (expert) Pou Temara identifies a representative liminal middle space between tikanga Māori and state law and a safe space for negotiation and achievement of solution. As such:

It is vital that all working New Zealanders, including policymakers, employment law practitioners, trade unionists, and academics, recognise the potential for tikanga Māori to be used within employment-related issues. There is a liminal space in which tikanga Māori and state law might come together to better negotiate tensions and seek pathways through confronting challenges, both among individual employment relationship problems and the broader issues that face the world of work.

As expressed by Inglis (Reference Inglis2021), it is high time that the ‘monocle’ one-system of law is replaced by a more meaningful ‘pair of spectacles’ that better represents the bicultural and Te Tiriti-led future that is necessary within Aotearoa NZ society and the law which represents said society (216). While this paper is an initial exploration, it has revealed that there is certainly more work to be done and that this is certainly an area worth exploring. Tikanga Māori and broader Indigenous thought provide industrial relations and employment law with an opportunity to make further inroads to becoming more significant for all.

Rather than continuing with the status quo in which employment relationships are arranged according to a series of contractual agreements with inherent power imbalances, there are opportunities to allow for a more humanistic and values-based approach, which furthers the aims of all parties to the employment relationship. This is a far cry from the current system with colonial and capitalistic roots, which inherently is systematically violent. Furthermore, there may be opportunities to consider systems of work that justly honour the rights and obligations afforded to all peoples of Aotearoa NZ, tangata whenua and tangata Tiriti, by He Whakaputanga o te Rangatiratanga o Niu Tīreni and Te Tiriti o Waitangi.

This paper is an initial exploration of tikanga Māori and personal grievances processes within the workplace, originally researched as part of an Honours dissertation when Xavier Walsh recognised through personal, organising, and policy experience that the status quo of personal grievances within Aotearoa NZ is broken. It was through their university studies that they recognised that rather than needing to create something ‘new’, Indigenous knowledge and practice offered much prospect. Together with their supervisor, Daniel Hikuroa, they aim to continue this work together.

To conclude, without adjustment and rethinking, continuing with the current personal grievance processes will continue to create ‘winners’ and ‘losers’, which certainly does little to aid working people and their employers. This process is not efficacious for the desired productivity of the neoliberal capitalist regime nor for the maintenance or improvement of employment relationships. We would urge people to consider that, given the nature of these relationships being just that, relationships, we all consider a world of work that seeks to restore or rebalance relationships wherever harm occurs.