Tikanga and Investment: Navigating Opportunity Amid Hon Paul Goldsmith’s Concerns

Our Justice Minister's concern that integrating tikanga into New Zealand’s legal system could discourage foreign investors, particularly in commerce, may reflect an unnecessarily narrow perspective. Properly managed, tikanga can be a positive force for the New Zealand economy, creating new opportunities and encouraging entrepreneurship while preserving indigenous values. There are several ways in which this can be achieved:

1. Clear and Transparent Legal Frameworks with Integrated Tikanga

• Predictability and transparency: Tikanga can be incorporated into the legal framework through defined principles and processes that operate alongside common law rules. This would ensure predictability for foreign investors, alleviating concerns about uncertainty.
• Precedent and guidelines: Just as other jurisdictions develop case law on indigenous issues (e.g., Native American tribal law in the U.S. or Aboriginal law in Australia), New Zealand can and had provided clear legal precedents that outline how tikanga principles apply in specific areas, such as land management or resource development.

2. Attracting Socially Conscious Investors

• Demand for ESG-aligned investments: Global investors are increasingly interested in Environmental, Social, and Governance (ESG) initiatives. Integration of tikanga reflects a commitment to indigenous rights and sustainable development, which aligns with ESG principles. This can make New Zealand more attractive to socially responsible investors.
• Cultural capital: Tikanga’s emphasis on guardianship (kaitiakitanga) and sustainability resonates with global environmental priorities. Companies that embrace tikanga may gain a competitive edge, attracting investment from funds focused on sustainability and ethical governance.

3. Leveraging Indigenous Values for Economic Growth

• Opportunities for Māori business partnerships: Respect for tikanga could foster greater collaboration with Māori businesses, unlocking unique opportunities for joint ventures in tourism, agriculture, energy, and technology sectors.
• Examples from other countries:Canada: The legal recognition of Indigenous land rights has led to profitable partnerships between Indigenous groups and resource companies (e.g., agreements with First Nations in mining and forestry sectors).Australia: The integration of Aboriginal law in some business practices has opened pathways for Aboriginal enterprises, particularly in tourism and land management industries.United States: Native American tribes have successfully partnered with private investors in gaming, real estate, and green energy projects, contributing significantly to local economies.

4. Tikanga as a Competitive Advantage

• Enhancing New Zealand’s global identity: Incorporating tikanga into the legal system strengthens New Zealand's reputation as a progressive and culturally inclusive nation. This positive image can differentiate New Zealand in a competitive global market.
• Innovation through diversity: Legal systems that integrate indigenous values promote innovative solutions by combining traditional knowledge with modern business practices. For example, kaitiakitanga promotes long-term thinking, which can lead to more sustainable and profitable outcomes.

5. Case for Integration without Undermining Commercial Law

Goldsmith’s concern that tikanga might interfere with commercial law overlooks the reality that legal pluralism can coexist with market certainty. Countries like Canada and Australia provide frameworks where indigenous values influence areas such as land use and environmental stewardship without creating commercial chaos.

Moreover, tikanga can be limited to specific contexts, such as environmental management or land-related disputes, without disrupting mainstream commercial law. New Zealand can develop a dual-track system where tikanga applies in areas where it adds value while maintaining the clarity required for commercial transactions.

Conclusion: A Framework of Opportunity, Not Obstruction

Rather than being viewed as a barrier, the integration of tikanga can create new avenues for economic growth and innovation. Managing the relationship between tikanga and the legal system through clear guidelines, judicial precedents, and targeted application can provide the certainty investors require while embracing New Zealand’s indigenous heritage. Other nations’ success in incorporating indigenous values demonstrates that legal systems can be enriched by these principles without deterring investment.

Incorporating tikanga into law signals respect for indigenous culture and ensures that Māori businesses and investors can thrive alongside their global counterparts, ultimately benefiting New Zealand's economy.