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Wickliffe, Caren --- "Te Timatanga. Maori Women's access to justice" [2005] NZYbkNZJur 21; (2005) 8.2 Yearbook of New Zealand Jurisprudence 217

Last Updated: 19 April 2015

TE TIMATANGA

MAORI WOMEN'S ACCESS TO JUSTICE*

Caren Wickliffe**

INTRODUCTION

Maori women have been at the forefront of Maori demands for justice in Aotearoa/Te Waipounamu. Maori demands for justice are all embracing, affecting all aspects of the New Zealand legal system challenging issues of identity and privilege of the dominant society and affecting Maori participation in the social, economic and political life of this land.' For Maori it is not enough to create equality of access to the legal system - instead they have sought to have their rights and interests acknowledged and protected by the legal system - rights and interests affirmed in the Treaty of Waitangi. In this regard Maori women have been concerned about justice issues that reflect not only their place within their whanau, but also in their hap and iwi - issues that reflect their roles as leaders of their tribal nations, as holders of property rights, as citizens with alternative realities of life based on alternative values and norms. This paper is an attempt to record the history behind demands made by Maori women and their communities for access to substantive justice.

I MAORI SOVEREIGNTY, LAW AND JUSTICE

A Maori Sovereignty

To be sovereign, a nation has to govern itself by its own authority and its own laws.2 By 1840 Maori assumed sovereignty3 over the whole

This article was written in 1999 for the New Zealand Law Commission, for the project, Justice, The Experience of Maori Women (NZLC R 53).

** Caren Wickliffe is of Ngati Porou, Rongowhakata descent. She holds a law degree and a Masters in Law with a specialist interest in comparative indigenous law. She has lectured and practiced law and is currently a Judge of the Maori Land Court.

  1. M. Wilson & A Yeatman (eds) Justice & Identity, Antipodean Practices (Bridget Williams Books Ltd, Wellington, 1995) xiii.
  2. P. McHugh The Maori Magna Carta: New Zealand and the Treaty of Waitangi (Oxford University Press, Auckland, 1991) 14.
  3. Declaration of Independence in New Zealand 28th day of October, 1835 as reproduced in L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) 194-196.

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of New Zealand.4 Best wrote of this time "[i]t may be fairly stated that, in pre-European days, there was no area of land that was not claimed by some tribe."5 According to Swainson, writing in 1859, Maori territorial claims were not:6

... confined to the land they may have brought into actual cultivation, but they claim and exercise ownership over the whole surface of the country; and there is no part of it, however lonely, of which they do not know the owners. Forests in the wildest part of the country have their claimants. Land, apparently waste, is highly valued by them. Forests are preserved for birds; swamps and streams for eel-weirs and fisheries. Trees, rocks and stones are used to define the well known boundaries.

Maori sovereignty over the land and sea was sourced in Maori norms and values and the socio-political order of the Maori people - an order defined by whakapapa and whanaungatanga7 - matters inextricably linked to Maori cosmology8 and underpinned by a significant body of philosophical, religious and spiritual belief.9 Kinship was fundamental in determining social status,1° a matter recognised by the Waitangi Tribunal when it found in the Muriwhenua Land Report:11

  1. See P. Adams Fatal Necessity British Intervention in New Zealand 1830-1847 (Auckland University press/Oxford University Press, Auckland, 1977) 176; E. Best The Maori (Polynesian Society Inc., Wellington, 1941) Vol. 1, 396; W. Swainson New Zealand and its Colonisation (C. Smith, Elder & Co., London, 1859) 151; New Zealand Maori Council v A-G [1987] 1. N.Z.L.R. 641, 670-674.

5 E. Best The Maori (Polynesian Society Inc., Wellington, 1941) Vol. 1, 396.

  1. W. Swainson New Zealand and its Colonisation (C. Smith, Elder & Co., London, 1859) 151.
  2. Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 23 citing Professor Dame A. Salmond.
  3. E. T. Durie "Custom Law, Address to the New Zealand Society for Legal and Social Philosophy" (1994) 24 V.U.W.L.R. 325, 328; and E.T. Durie Custom Law (Unpublished paper, January 1994) 3-8; Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 15.
  4. H. Kawharu Maori Land Tenure: Studies of a Changing Institution (Oxford University Press, Oxford, 1977) 52-55; Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 15.

10 E.T. Durie Custom Law (Unpublished paper, January 1994) 5.

  1. Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 26.

2005 Te Timatanga Maori Womens Access to Justice 219

Whanaungatanga stressed the primacy of kinship bonds in determining action and the importance of whakapapa in establishing rights and status. Whakapapa was the basis for hapu allegiance, for establishing that all Maori are related, and for demonstrating the connection of Maori to the elements of the universe.

The main social unit of Maori society was the Maori whanau - domestic kin-based groups.I2 As whanau fused together they became communities of descent known as hapu or iwi.13 These polities were the most significant political units in Maori society - a view recently confirmed by the Waitangi Tribunal in the Muriwhenua Land Report when it found that political power and authority was vested in descent groups called hapti.14

Whanau, hapu and iwi were comprised of ariki-paramount chiefs, tohunga - expert advisors/leaders, rangatira - chiefs, kaumatua - elders, pakeke - mature adults, rangatahi-young adults, tamariki-children and taurekareka-slaves.15 Individuals could align themselves to a number of different communities, but ultimately individual rights were contingent upon acceptance by that individual of the obligations of membership in a particular hapu or iwi.16

After analysing the limited material available on pre-contact hapu and iwi a number of commentators have agreed that these communities probably began to take shape in the fifteenth century.17 The trading

  1. See discussion by S. Webster Maori Hapii as a Whole Way of Struggle 18401850s Before the Land Wars (Unpublished paper, Social Anthropology, University of Auckland, Sept. 1996); see also Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 29.
  2. S. Webster Maori Hapii as a Whole Way ofStruggle 1840-1850s Before the Land Wars (Unpublished paper, Social Anthropology, University of Auckland, Sept, 1996) 1-2; Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 14, 29.
  3. Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 28-29.
  4. See discussion by J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 34-50.
  5. H. Kawharu Maori Land Tenure: Studies of a Changing Institution (Oxford University Press, Oxford, 1977) 39; Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 23-25.
  6. See generally S Webster Hapii as a Whole Way ofStruggle 1840-1850s Before the Land Wars (Unpublished paper, Social Anthropology, University of Auckland, Sept. 1996) 12.

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relationships established with Europeans from the late 1700s, accelerated the development and evolution of hapu and iwi, and the even more inclusive structure - waka.18 All these entities became central to the selfgovernment of Maori tribal nations.19

Rangatira occupied central roles in these communities,2° deriving their authority from the consent of other members of their whanau or hapu, their whakapapa (genealogy), mana (authority or status), or from the deeds they performed for the benefit of their hapu or iwi.21 Their authority depended on the acceptance of their leadership and the chiefs rarely acted without consultation with the whole community.22 The role of rangatira illustrates that:23

... Maori authority was neither centralised nor institutionalised, and power moved up from the people and not down from a central authority. Accordingly, authority was not divorced from personal power and influence. Although the necessary leadership traits were reinforced by beliefs that mana was divine delegation, it was unlike the English divine right of kings in that power was only partly inherited and mainly acquired. The society was thus basically democratic and there was room for class mobility.

  1. See generally S Webster Napa as a Whole Way of Struggle 1840-1850s Before the Land Wars (Unpublished paper, Social Anthropology, University of Auckland, Sept. 1996) 12.
  2. L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland 1993) 18; J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 16.
  3. L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland 1993) 18; Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 29-30.
  4. A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Auckland University Press/Oxford University Press, Auckland, 1974) 5-6; Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 29-30.
  5. S. Webster Maori Hapu as a Whole Way of Struggle 1840-1850s Before the Land Wars (Unpublished paper, Social Anthropology, University of Auckland, Set. 1996) 9; A. Ward A Show of Justice, Racial Amalgamation in the Nineteenth Century, New Zealand (Auckland University Press/Oxford University Press, Auckland, 1974) 5-7, Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 38.
  6. Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 29-30.

2005 Te Timatanga Maori Womens Access to Justice 221

B Mao; Law and Justice

The study of Maori law requires evaluating the discourses, practices and beliefs essential to the operation and reproduction of Maori society.24 Durie has defined Maori law as:25

... values, standards, principles or norms to which the Maori community generally subscribed for the determination of appropriate conduct.

Despite local variations, he points out that a number of generalisations may be made about pre-existing Maori law in which the words "tikanga" and "kawa" played a central role in most Maori societies.26 This is to be compared to the word "ture" which was later used to denote western law.27 Tikanga, Durie argues, described Maori law and is derived from "tika, or that which is right or just.28 This indicates that Maori believed that justice and truth were interchangeable terms. The opposite of tika is the word he (wrong). Tikanga could also refer to "ritual, but in the sense that ritual was also tika, customary or correct."29 Tikanga was also pragmatic and open ended and Durie adds "[i]ts lack of rule-like definition was compensated by its ability to change without institutional intervention."30 It was therefore flexible. Kawa, on the other hand, described ritual and ceremony.3I Kawa also referred to process and procedure, of which karakia (the rites of incantation) formed part -kawa was rule-like, more rigid and applied mainly to process and procedure.32 These were the terms used to describe the framework, process and procedure of Maori law.

  1. See N. Rouland Legal Anthropology (The Athlone Press, L9ndon, 1994) and his general discussion on the study of law.

25 E. T. Durk When Will the Settlers Settle (1996) 8 O.L.R. 449, 452.
26 E. T. Durie Custom Law (Unpublished Paper, January 1994) 2-4.
27 E. T. Durie Custom Law (Unpublished paper, January 1994) 3.
28 E. T. Durie Custom Law (Unpublished paper, January 1994) 3
29 E. T. Durie Custom Law (Unpublished paper, January 1994) 3.

  1. E. T. Durie Custom Law (Unpublished paper, January 1994) 4; see also Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 26.
  2. Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 26.

32 E. T. Durie Custom Law (Unpublished paper, January 1994) 4.
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Within this framework, Maori operated by reference to philosophical and religious principles, goals, and values which combined to regulate the conduct of individuals, of whanau, hapu and iwi.33 Regulators included: (a) mana - sovereignty, authority, prestige, political authority and power; (b) mana tupuna - mana from the ancestors; (c) mana whenua - mana over the land; (d) mana tangata - mana over people, (e) wairua - the spiritual dimension, (f) manaakitanga - generosity; (g) aroha - respect;34 (h) mauri - life essence; (i) tapu and noa - sacredness and neutralisation; (j) rahui - prohibitions; (k) hau - the vitality of gift exchange and the symbolic reciprocity it acknowledges and anticipates.35 Henare has also emphasised the importance of tapu, mana, mauri and hau as core values and he has identified Maori cosmology, religion and the duality of Maori conceptual thought in the development of Maori philosophy and law.36

Maori society was governed by these values and norms - imposed through the doctrines of tapu and noa, utu - exchange/reciprocity and mum - reparation.37 Noa, utu and mum were the mechanisms necessary for the restoration of balance in a legal system that valued balance and harmony above all else.38

  1. H. Kawharu Maori Land Tenure: Studies of a Changing Institution (Oxford University Press, Oxford, 1977) 40.

34 E. T. Dude Custom Law (Unpublished paper, January 1994) 4-56.

  1. Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 26-28; see also J. Metge New Growth from Old, The Wheinau in the Modern World (Victoria University Press, 1995) 83-85, 335, discussing the concepts of mauri, tapu and noa which she describes as values.

36 Maori land Law Guest Lecture, Faculty of Law, V.U.W. 1995.

  1. See S. Moko Mead Customary Concepts of the Maori (Unpublished Notes, Maori Studies Department, Victoria University, 1984) chs 3-4 for full definitions and examples of use of utu and muru.
  2. See discussion in Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 26.

2005 Te Timatanga Maori Womens Access to Justice 223

C. The Impact Of Maori Sovereignty Self-Government And Law On
Moon' Women's Access To Justice

Although difficult to retrieve information and data on the topic of Maori women's access to justice, legal ethnology39 and legal anthropology40 may be utilized as tools for uncovering evidence of how Maori women participated in Maori self-government, how they made Maori law and how they administered and accessed justice.

It is beyond the scope of this paper to discuss in full the role Maori women played in the Maori legal system of Aotearoa before colonisation. A comprehensive study on this topic is needed. For our purposes, we have selected a handful of sources to provide a framework within which the role of Maori women in government, law, administration and access to justice may be discerned.

At least one commentator has begun the process of uncovering the role of Maori women, utilising a number of sources including the oral traditions of Maori society. In her major work entitled The Balance Destroyed: The Consequences for Maori Women of the Colonisation of Tikanga Maori (1995) Mikaere explains how the female presence and essence permeated Maori cosmology, Maori explanations of the origins of mankind, the transferral of knowledge, the mysteries surrounding life and death and the restoration of balance.4'

  1. See N. Rouland Legal Anthropology (The Athlone press, London, 1994) 136-143 discussing legal ethnology as a discipline associated with learning about different cultures by observing those cultures and their institutions and by developing ethnographic descriptions and data recording those observations. It is a discipline that recognises the importance of both written and oral sources because in "face to face" societies the legal domain, norms and values are "inculcated by recitation and disputes are settled through the spoken word".
  2. See N. Rouland Legal Anthropology (The Athlone press, London, 1994) 143-147 discussing legal anthropology as a discipline that concentrates on identifying the social structures, beliefs and value systems of different cultures and then analysing this data by reference to comparative systems and data. It is a discipline that by comparison seeks to uncover universality of legal thought.
  3. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTilcanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 8-20.

224 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

Other writers have discussed the importance of Maori women in Maori cosmology and philosophical thought.42 For example, Hohepa has listed some of the main female deities in Maori cosmology and has highlighted their importance in the transferral of knowledge and wisdom.43

Papatuaanuku, Earth Mother or Planet Earth, is the ancestress of all things. She and her children are the guardians or the progenitors of everything on and under the earth, sea and skies. The two grandchildren of Papatuaanuku, Hineahuone ... and Hinerauwhaarangi were the first to receive human form and were empowered by the guardians and gods to be the receptacles of all knowledge which they then transferred genealogically and genetically through demigods and demigoddesses to Maori.

The Maori female presence and essence could bring balance, power, strength or spiritual renewal and female sexuality was - in times of peace - a force that was celebrated and revered.44 Maori women could possess and exercise power and authority - they could exercise Mana Wahine.45

Maori polities were comprised of communities of descent sharing common genealogical ties to one or more eponymous ancestor/s, either female or male.' Rank within the kin-group did not depend on gender and female descent lines could be as important as male.47 Gender

  1. See for example P. Hohepa & D. Williams The Taking into Account of Te Ao Maori in Relation to Reform ofthe Law ofSuccession (Law Commission, Wellington, July 1996) 13-15; see also M. Cracknell Te Whakaari o Takitimu — Planning in Waste Management, Guidelines for Maori (Produced for Ministry for the Environment, Wellington, Undated) 24-25 discussing the status of Woman and the Environment.
  2. P. Hohepa & D. Williams The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (Law Commission, Wellington, July 1996) 1315.
  3. A Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation of Tikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 15-47.
  4. V. Kupenga, R. Rata & T. Nepe "Whaia Te Iti Kahurangi: Maori Women Reclaiming Autonomy: in Puna Wairere (Unpublished Essays by Maori, Wellington, 1990) 8-12.
  5. See generally S. Webster Maori Hapfi as a Whole Way of Struggle 1840-1850s Before the Land Wars (Unpublished paper, Social Anthropology, University of Auckland, Sept. 1996) 2.
  6. See generally A. Mahuika "Leadership, Inherited and Achieved" in M. King (ed) Te Ao Hurihuri, The world moves on: aspects of Maoritanga (Reprinted by Longman Paul, Auckland, 1981).

2005 Te 77matanga Wort Womens Access to Justice 225

neutral terms and personal pronouns described social relationships and status within Maori polities.48 Descent was traced through links of either sex, permitting affiliation to any whanau, hapu and iwi associated with maternal or paternal descent categories.49 In this way the benefits and rights of membership of these alternate Maori polities were transferred. Women, subject only to tribal variation or rank, could be eponymous ancestors, rangatira, kaumaatua, pakeke, matua, rangatahi or taurekareka.5°

In these early Maori communities, individual rights were of secondary importance to the mutual security and well-being of the collective.51 In Maori societies:52

... use-rights over land and resources were "owned" or held by women as individuals as well as by men, subject only to the over-riding right of the tribal community and the mana (authority) of chief over land and people. Inheritance was bilateral; eel weirs, rat runs, bird and berry trees, cultivations and other forms of property could be handed down from either parent to specific children, male or female. Gifts of lands and resources were often made by parents to their daughters on marriage. These lands remained the property of the women, not the husbands, and they could hand them on to some or all of their children.

Maori women could govern and/or participate in decisions relating to the political, military, social, economic, spiritual and cultural directions of their polities.53 This was because Maori women lived in societies that:54

  1. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation of Tikanga Maori (Unpublished Thesis M.Jur Thesis, Waikato University, 1995) 2.
  2. J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 38.
  3. A. Mahuika "Leadership, Inherited and Achieved" in M. King (ed) Te Ao Hurihuri, The world moves on: aspects of Maoritanga (Reprinted by Longman Paul, Auckland 1981).
  4. J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 36.
  5. A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in the Women's Kotahitanga Movement of the 1890's" (1993) 27 No. 2, N.Z.J.H. 127, 133-134.
  6. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation of Tikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 48-73; see also J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 131.
  7. A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in the Women's Kotahitanga Movement of the 1890's" (1993) 27 No. 2, N.Z.J.H. 127, 130.

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... embraced a world view determined by whakapapa; people reckoned their kinship to each other, including their seniority or inferiority, by descent from former common ancestors. Descent from bilateral senior lines conferred senior status which was, by definition, not confined to males. In a society which recognised the pre-eminent rank and status of some women, all women could not be regarded as inferior to all men.

Consequently, Maori women could participate directly in the administration of justice,55 either as people of rank or as one of the collective making decisions by consensus.

II BRITISH RECOGNITION OF MAORI SOVEREIGNTY, SELFGOVERNMENT AND MAORI LAW

A. The Early Relationship

During the years 1800-1830 the European posed no political or economic threat to Maori status and rights. Maori sovereignty, Maori law, and Maori justice continued throughout the decade 1830-184056 when the settler population increased from 300330 to approximately 2,000.' Although many settlers did not like living under a Maori legal system, they accepted that for all practical purposes they had little choice for, as Alan Ward explains:"

It is clear then that Maori people received Europeans in New Zealand very much on their own uncertain terms, including their notions of dispute settlement. Those settlers who could not accept that this should be so, were frustrated, humiliated, and at times fearful of their dependence upon people whom they considered savages.

Alan Ward records that this period may be characterised as one when Maori chiefs and their communities selectively adopted and incorporated

  1. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation offlkanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 58 and the example she cites of the actions of Rangi Topeora from Ngati Toa avenging the death of her sisters.
  2. R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 135-137.
  3. R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 135.
  4. A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 23.

2005 Te Timatanga Maori Womens Access to Justice 227

elements of European institutions and culture within their own traditional value systems.59 He also suggests that, as traditional Maori social structures and value systems were open, responsive and adaptive to change, European settlement was for the most part encouraged primarily to facilitate trade.6°

After 1830 Maori began to organise on a national level and in 1835 the United Tribes of New Zealand declared their sovereignty through the Declaration of Independence. This declaration of Maori sovereignty and independence was acknowledged by the Colonial Office.61 This continued a pattern of Imperial recognition that had been manifest in instructions, Imperial actions, legislation and policy in place from the "discovery" ofNew Zealand by James Cook through to the instructions to James Busby in 1835.62 No rights were sought by the Colonial office or exercised by the Crown over Maori tribes or their territory before 1840. In fact, British sovereignty over New Zealand and its inhabitants was repeatedly denied in Acts of the Imperial Parliaments.63 But by 1839, the Colonial Office had decided to acquire territories in New Zealand and colonial officials were instructed accordingly. Boast, in examining the reasons for British intervention in New Zealand, argues

that:64

... many historians are deeply sceptical of a reading of the history of annexation and the Treaty that emphasises the pressures of the humanitarian lobby in Britain and the Crown's supposedly protective and altruistic objectives regarding Maori in 1840.

  1. A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 16-17.
  2. A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 18.
  3. D. Williams "The Foundation of Colonial Rule in New Zealand" (1988) 13 N.Z.U.L.R. 54, 55.
  4. P. McHugh The Aboriginal Rights of the New Zealand Maori at Common Law (Unpublished PhD Thesis, Sidney Sussex College Cambridge, 1987) Part II.
  5. See 1817 (UK) 57 Geo. III, c.53; 1823 (UK) 4 Geo. IV, c. 96; 1828 (UK) 9 Geo, IV, c.83.
  6. R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 130.

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In 1839 Captain Hobson was directed to treat for sovereignty over New Zealand65 and he was charged with promoting the "civilisation" of Maori by providing support for missionaries who would establish missionary schools. Until Maori were "civilised" the imperial practice of leaving indigenous polities alone to govern themselves according to their own laws was reflected in the following instruction:66

... until they can be brought within the pale of civilised life, and trained to the adoption of its habits, they must be carefully defended in the observance of their own customs, so far as these are compatible with the universal maxims of humanity and morals. But the savage practice of human sacrifice and cannibalism must be promptly and decisively interdicted; such atrocities, under whatever plea of religion they may take place, are not to be tolerated in any part of the dominions of the British Crown.

What had not been anticipated was the degree of resistance from Maori to assimilation and their determination to maintain their own forms of self-government, law and justice.67

  1. Normanby's Dispatch to Captain Hobson, 14 August 1839 in R. McNab (ed) Historical Records of New Zealand (Government Printer, Wellington, 1908) Vo. I., 730-731.
  2. Normanby's Dispatch to Captain Hobson, 14 August 1839 in R. McNab (ed) Historical Records ofNew Zealand (Government Printer, Wellington, 1908) Vol. I., 735; for a full evaluation of British Imperial practice see C. Wickliffe Indigenous Polities, Self-Government, Law, Citizenship And Property Rights: Inside-Out, Outside-In: A Comparative Study Of The United States OfAmerica, Canada, And New Zealand (Unpublished LLM Thesis, Victoria University of Wellington, 1996).
  3. See C. Wickliffe Indigenous Polities, Self-Government, Law, Citizenship And Property Rights: Inside-Out, Outside-In: A Comparative Study Of The United States OfAmerica, Canada, And New Zealand (Unpublished LLM Thesis, Victoria University of Wellington, 1996) ch. 5.

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B The Treaty Of Waitangi

The Treaty of Waitangi represents a compact between two races.68 It was fundamentally an exchange between the British Crown and two distinct classes of tribal and sub-tribal nations - those who had formed the United Tribes of New Zealand under the Declaration of Independence 1835 and those who remained autonomous.69 It was an international treaty and a document that recognised the preexisting sovereign status of all Maori nations."

Initially signed at Waitangi on 6 February 1840, during the period February-September 1840, the Treaty was taken to other locations around the country for Maori signatures.71 Before that task was completed, on 21 May 1840, Lieutenant-Governor Hobson issued two proclamations asserting the Crown's sovereignty over the North Island of New Zealand by cession and over the South Island by discovery and annexation.72 Hobson later changed the nature of the British claim to sovereignty over the South Island so that it rested on cession."

  1. The Treaty of Waitangi was written in Maori and English (Treaty of Waitangi Act 1975 (NZ) 1st sch) but the Maori version was given little attention in the early years of the colony, for example, in R v Symonds (1847) [1840-1932] N.Z.P.C.C. 387. However, this approach is no longer accepted by the judiciary and in contemporary times the Courts and the Waitangi Tribunal have adopted similar approaches to the interpretation of the Treaty of Waitangi. The Waitangi Tribunal is required by the Treaty of Waitangi Act 1975 (s.5 (2)) to have regard to both texts of the Treaty, and the Court of Appeal and the Privy Council have adopted a similar approach. See for example New Zealand Maori Council v Attorney-General [1987] 1 N.Z.L.R. 641; New Zealand Maori Council v Attorney-General [1994] I N.Z.L.R. 513.
  2. L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) 28.
  3. The Treaty of Waitangi is fundamentally different to treaties in the Americas. In the USA and Canada colonisation commenced by friendship, trade, protection and alliance treaties. Subsequently, colonisation would proceed through treaties of cession of land. Generally the American and Canadian treaties did not deal with the sovereign status of indigenous polities.

71 C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1987) ch. 4.

  1. Lieutenant-Governor Hobson to the Secretary of State for the Colonies, 25 May 1840, G.B.P.P. (I.U.P. Shannon, Ireland) [1835-1842] Vol. 3, 137.
  2. H. C. Evison Te Waipounamu, the Greenstone Island: A History of the Southern Maori during the European Colonisation of New Zealand (Aoraki Press in association with Ngai Tahu Maori Trust Board & Te Runanga o Tahu, Christchurch, 1993) 141; see also C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1987) 84.

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The Maori version of the Treaty of Waitangi secured Maori assent to colonisation.74 It was signed by over 500 chiefs75 and less than 40 chiefs signed the English translations.76 The Maori text contains broader guarantees than are apparent from a bare reading of the English text a matter recognised by the Waitangi Tribunal.77 According to Article the First of the English version, the chiefs ceded absolutely and without reservation all the rights and powers of sovereignty.78 The Maori version of the Treaty of Waitangi, on the other hand, conveyed only the right to govern - something less than full sovereignty.79 Article the Second in the English Version, confirmed and guaranteed to Maori:

... the full exclusive and undisturbed possession of their Lands, and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in possession ...

  1. C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1987) 4555.

75 C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1987) 1.

  1. Due to the significance of the Maori version of the Treaty of Waitangi in securing Maori assent, the Waitangi Tribunal has accorded significant weight to the Maori text of the Treaty, and applies the rule that in the event of an ambiguity, provisions of the Treaty should be construed against the party which drafted or proposed its provisions. (Lord McNairs, Law of Treaties (1961) 464, as applied by the Waitangi Tribunal in the Waitangi Tribunal Orakei Report Wai 9 (Department of Justice, Wellington, 1987) 128; Waitangi Tribunal Muriwhenua Fishing Report Wai 22 (2. ed) (Department of Justice, Wellington, 1989) 188-189; Waitangi Tribunal Ngai Tahu Report Wai 27 (Brookers, Wellington, 1991) 223 3 WTR 415. The Tribunals approach (seemingly adopted by the Courts) to interpreting the Treaty of Waitangi has important consequences for the extent to which Maori rights in the common law may be recognised.
  2. Waitangi Tribunal Muriwhenua Fishing Report Wai 22 (2. ed) (Department of Justice, Wellington, 1989) 173-188, where the Waitangi Tribunal has observed that approximately 500 chiefs or tribal representatives signed the Maori text of the Treaty of Waitangi, whereas only 39 chiefs or tribal representatives signed the English text.

78 Treaty of Waitangi Act (NZ) 1st sch.

  1. H. Kawharu "Translation of the Maori Text, Appendix" in H. Kawharu (ed.) Waitangi Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 319-321.

80 Treaty of Waitangi Act (NZ) 1st sch.

2005 Te Timatanga maw' Womens Access to Justice 231

The guarantee is described in the Maori version as "te tino rangatiratanga" (the full sovereignty, mana, power, authority) over their lands, villages, and their "taonga" (treasures).81 On the meaning of this guarantee the Waitangi Tribunal has explained:82

`Te tino rangatiratanga o 0 ratou taonga' tells of the exclusive control of tribal taonga for the benefit of the tribe including those living and those yet to be born. There are three main elements embodied in the guarantee of rangatiratanga. The first is that authority or control is crucial because without it the tribal base is threatened socially, culturally, economically and spiritually. The second is that the exercise of authority must recognise the spiritual source of taonga (and indeed of the authority itself) and the reason for stewardship as being the maintenance of the tribal base for succeeding generations. Thirdly, the exercise of authority was not only over property, but of persons within the kinship group and their access to tribal resources.

Therefore, Article the Second guaranteed the right to Maori self-government, law, and justice. In addition, Article the Second of the Treaty affirmed the Crown's right of pre-emption and in his interpretation of this aspect of the Treaty texts Richardson J. has stated:83

In relation to land - and it is land with which this case is concerned - the Crown was to be the buffer, the intermediary. The settlers were to obtain land for settlement but only by purchase from the Crown which had the sole right to buy from Maoris willing to sell.

On the other hand, by Article the Third in the English version, the Queen extended her protection to Maori and all the rights and privileges of British subjects, including access to the British justice system. The English version of the Treaty seems to be clear that Maori were being given all the rights and privileges of British subjects. However, when considering the Maori text a different result can be achieved:84

  1. H. Kawharu "Translation of the Maori Text, Appendix" in H. Kawharu (ed.) Waitangi Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 319-321.
  2. Waitangi Tribunal Muriwhenua Fishing Report— Wai 22 (2. ed) (Department of Justice, Wellington, 1989) 181, see 179-180 for a discussion of the concept of taonga.

83 New Zealand Maori Council v Attorney-General [1987] 1 N.Z.L.R. 641, 674.
84 Treaty of Waitangi Act (NZ) 1st sch.
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Ko to Tuatoru

Hei Wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini - [Ka] tiakina e te Kuini o Ingarangi nga tangata Maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea, ki nga tangata o Ingarangi.

Sir Hugh Kawharu translates this article as:85

[This is] the third

For arrangement therefore this for the agreement concerning the Government of the Queen will be protected by the Queen of England the people ordinary all of New Zealand [who] will give them rights and duties all in equal measure [that apply] under her constitution to the people of England.

Reverend Maori Marsden told the Waitangi Tribunal that Article the Third could be seen as showing that "the Maori was assured the use of his own rites and customs (tikanga) in the same way as the settlers were to be assured of theirs."86

Through Article the Second and Third of the Treaty of Waitangi the Crown had expressly permitted the continuation of a system where individual Maori would govern themselves according to their own values and norms subject only to Imperial over-sight. It was a system whereby Maori would owe allegiance to the Crown as subjects, while continuing to owe allegiance to their hapu and iwi - they became dual citizens.87 The continuation of Maori citizenship of their hapu/iwi was the logical

  1. H. Kawharu "Translation of the Maori Text, Appendix" in H. Kawharu (ed.) Waitangi Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 319, 320 and note his use of the word citizenship is interesting as this was not the primary definition applied in 1840 — rather the term should be subject.
  2. Waitangi Tribunal Orakei Report — Wai 9 (Department of Justice, Wellington, 1987) 135.
  3. C. Wickliffe Indigenous Polities, Self-government, Law, Citizenship And Property Rights: Inside-Out, Outside-In: A Comparative Study of the United States Of America, Canada, and New Zealand (Unpublished LLM Thesis, Victoria University of Wellington, 1996) 373-381.

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pre-requisite for the continuation and application of Maori law and justice.88 This is consistent with the view of Dr Mason Durie who has argued:89

The Treaty would provide for the lawful and orderly settlement of New Zealand by British immigrants. The different roles of Government and tribal authorities would be respected. Maori people would not be unfairly disadvantaged by the colonising process and could expect to retain their own social and economic systems. Additional rights, as British subjects, would be extended to all Maori people ...

C. Events Following The Signing Of The Treaty Of Waitangi 1840
1865

On 2 October 1840, Hobson's proclamations were approved by the Colonial Office and published in the London Gazette.9° The Crown formally constituted New Zealand as a colony separate from New South Wales late in 1840.91 A Charter for the colony was developed conferring on the Legislative Council power to make laws for the peace, order and good government of New Zealand.92 However, Maori self-government and law was to continue subject to the restrictions imposed by the Imperial Parliament.93

  1. See Mobo v Queensland [1992] HCA 23; (1992) 66 A.L.J.R. 408, 430 and the discussion on the application of aboriginal law.
  2. M. Durie, "The Treaty of Waitangi: Perspectives on Social Policy" in H. Kawharu (ed) Waitangi Mciori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) 280.

90 C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1987) 85.

  1. Charter for Erecting the Colony of New Zealand, and for Creating and Establishing a Legislative Council and an Executive Council, and for Granting Certain Powers and Authorities to the Governor for the time being of the said Colony, G.B.P.P. (I.U.P. Shannon, Ireland) [1835-1842] Vol. 3, 153.
  2. Charter for Erecting the colony of New Zealand, and for Creating and Establishing a Legislative Council and an Executive Council, and for Granting Certain Powers and Authorities to the Governor for the time being of the said Colony, G.B.P.P. (I.U.P. Shannon, Ireland) [1835-1842] Vol. 3, 153-155.
  3. See Lord Russell to Governor Hobson 9 Dec. 1840, G.B.P.P. (I.U.P. Shannon, Ireland) [1835-1842] Vol. 3, 146, 149; see also New Zealand Government Act 1846 (UK) 9 & 10 Vict. c. 103, s.10 which continued this legislative approach.

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On June 30 1852, the Imperial Parliament passed the Constitution Act 1852.94 The Constitution Act 1852 repealed all previous Acts, Charters and Instructions but only in so far as they were repugnant to or would prevent or interfere with the operation of the 1852 Act, the new Charter and Instructions.95 The new Act authorised the establishment of a General Assembly consisting of the Governor, the Legislative Council and the House of Representatives.96 The General Assembly was invested with the power to make laws for the peace, order and good government of New Zealand.97 Provincial governments were established and Maori self-government continued. In this last respect the Act provided that:98

And whereas it may be expedient that the laws, customs, and usages of the aboriginal or native inhabitants of New Zealand, so far as they are not repugnant to the general principles of humanity, should for the present be maintained for the government of themselves in all their relations to and dealings with each other, and that particular districts should be set apart within which such laws, customs, or usages should be so observed:

The Treaty of Waitangi set the pattern of government for the colony adhered to in the Charters and Royal Instructions of 1840-1852, the Constitution Act 1852 and its amendment in 1857. By implementing these measures at the highest level of New Zealand's constitutional arrangements the British Crown affirmed the importance of Maori self-government, law and justice.

D. Concessions to Maw' Law and Justice 1840-1865

From 1841-1846 Maori law continued to govern matters inter-se with some scope for the Office of the Protector of Aborigines to intervene in inter-tribal or settler disputes.99 The authorities had little choice but

94 Constitution Act 1852 (UK) 15 & 16 Vict. c. 72.
95 Constitution Act 1852 (UK) 15 & 16 Vict. c. 72, s. 1.
96 Constitution Act 1852 (UK) 15 & 16 Vict. c. 72, s. 32.
97 Constitution Act 1852 (UK) 15 & 16 Vict. c. 72, s. 53.
98 Constitution Act 1852 (UK) 15 & 16 Vict. c. 72, s. 71.

  1. A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 48-55.

2005 Te Timatanga Maori WomensAccess to Justice 235

to allow Maori law and justice to continue.100 Legislation passed in large measure made concessions to Maori law and included statutes such as the Native Exemption Ordinance 1844,101 the Unsworn Testimony Ordinance,'" the Juries Amendment Ordinance 1844,1°3 and the Assault - Application of Fines Amendment Ordinance 1845.104

However, when Lieutenant-Governor Grey arrived in New Zealand in 1846 he disestablished the Office of the Protector of Aborigines replacing it with the Office of the Native Secretary.1°5 He repealed the Native Exemption Ordinance 1844 and passed the Resident Magistrates Courts and Administration ofJustice Ordinance 1846. These statutes were designed to impose European institutions on Maori communities.106 Grey's system seems to have received Maori acceptance, but only while it operated to protect the status and authority of the chiefs.'" If for any reason Maori became dissatisfied with the system they reverted to Maori law and justice.

E The Impact Of The Treaty Of Waitangi and Colonisation On Maori

Women and their Access To Justice 1840-1865

During this period Maori women of rank maintained powerful positions within the social and political organisations of their tribal nations. This is reflected in the fact that they expected to participate in the signing of the Treaty of Waitangi - a matter acknowledged by missionaries and described by Orange thus:1°8

100 Lord Stanley to Governor Fitzroy 13 August 1844, G.B.P.P. (I.U.P. Shannon, Ireland) [1843-1845] Vol. 4, 145, 151.
101 Native Exemption Ordinance 1844 (NZ) 7 Vict., No. 18, Preamble.
102 Unsworn Testimony Ordinance 1844 (NZ) 3 Vict., No. 16.
103 Juries Amendment Ordinance 1844 (NZ) 7 Vict., No. 11, s. 1.

104 Assault —Application of Fines Amendment Ordinance 1845 (NZ) 8 Vict., No. 7, s. 1; see A. Ward A Show of Justice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974)67 who argues this statute was a concession to the Maori law of utu.

105 A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 73.

106 Resident Magistrates Courts and Administration ofJustice Ordinance 1846 (NZ) 10 Vict., No. 16.

107 A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 84.
108 C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1988) 90.
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A precedent was established at Waitangi when Ana Hamu, the widow of Te Koki, original patron of the Paihia mission, had been allowed to sign. Henry Williams, knowing that women of high rank in Maori society could be given fitting acknowledgement, acted accordingly elsewhere. At Port Nicholson, the accession of Te Rau o to Rangi (Kahe) was allowed; at Kapiti the Chieftainess Rangi Topeora signed. Williams also drew Hobson's attention to a situation at Kapiti where 'the ladies have expressed some disapprobation in not having a more prominent part in the Treaty with Her Majesty' in as much as the agreement was with a woman. Subsequently, Williams appears to have allowed a Wanganui woman of rank, Rere o Maki, to sign. And in the North, at Kaitaia, the missionaries Taylor and Puckey had allowed the signing of Erenora, highborn wife of Nopera, chief of Te Rarawa.

In total, thirteen Maori women have been identified as signatories to the Treaty of Waitangi and more may be identified.1°9

This was a period when Maori women were acknowledged as owners of Maori land held under Maori law and custom and therefore they expected to participate in land sales under the pre-emption deed system."' For example, in 1850 Te Hapuku of Kahungungu had to obtain the permission of Hineipaketia before he could sell the Waipukurau block.' She was the person of the "highest rank" in the Heretaunga District at the time and she "pursued a course of land selling, exercising her mana over land and people as though they were her personal property."112 She was one of several chiefs caught up in the era of confusion over the effects of sale - a period when many chiefs confused sale (alienation) with tukuwhenua (grants of interests akin to use rights).113

109 T. Rei Maori Women and the Vote (Huia Publishers, Wellington, 1993) 8-9.

110 See H. Turton Maori Deeds of Land Purchase in the North Island ofNew Zealand — Ahuriri Deed 1851 (A2) signed by men and women; see also A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in the Women's Kotahitanga Movement of the 1890's" (1993) 27 No. 2, N.Z.J.H. 127, 134 where she discusses the number of women who signed the Waipukurau Deed and the Ahuriri Deed.

  1. A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in the Women's Kotahitanga Movement of the 1890s" (1993) 27 No.2, N.Z.J.H. 127, 131.
  2. A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in the Women's Kotahitanga Movement of the 1890s" (1993) 27 No.2, N.Z.J.H. 127, 131.
  3. A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in the Women's Kotahitanga Movement of the 1890s" (1993) 27 No.2, N.Z.J.H. 127, 131.

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However, with the exposure to a new economy,11 4 introduced disease,115 land alienation' 16 and Christianity, 11 7 Maori women's control, authority and direct participation in Maori self-government, the development of Maori law and the administration of justice was beginning to change.

In addition, the status of Maori women was undermined as European values and norms started to influence traditional practices and beliefs. The process of change began with the marginalisation of the female essence in early Eurocentric redefinitions of Maori cosmology, customs, values and norms) 18 It continued with the failure of some colonial officials to understand the importance of Maori women in Maori society, and their insistence on "patronymic surnames and by the emphasis placed on male dominance by the pakeha population."119 One early example of this lack of understanding is highlighted by Orange who notes Major Bunbury's refusal to allow a women of rank to sign the Treaty of Waitangi.12° It is reflected in the fact that most negotiations regarding the sale and purchase of Maori land in the main involved only men.121 It continued as colonial officials assumed that only male

114 See generally B. Mikaere Te Maiharoa and the Promised Land (Heinemann Press, Auckland, 1988); A. Ballara "The Pursuit of Mana? A re-evaluation of the Process of Land Alienation by Maori 1840-1890" (1982) 91 J.P.S., 519; B. Rigby & J. Koning Toitu te Whenua — Only the Land Remains Constant and Enduring: Crown Purchases in Muriwhenua 1850-1865 (Unpublished Historical Report Commissioned by the Waitangi Tribunal Wai 45, 1989).

115 B. Rigby & J. Koning Toitu te Whenua — Only the Land Remains Constant and Enduring: Crown Purchases in Muriwhenua 1850-1865 (Unpublished Historical Report Commissioned by the Waitangi Tribunal Wai 45, 1989).

  1. See generally A. Ballara "The Pursuit of Mana? A Re-evaluation of the Process of Land Alienation by Maori 1840-1890" (1982) 91 J.P.S., 519.
  2. See A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation of Tikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 74-93 and her discussion on the introduction of Christianity and the subsequent missionary, ethnological and anthropological distortions of Maori belief systems.
  3. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation of Tikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 74-102.

119 J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 132.
120 C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1988) 90.

121 See for example Waitangi Tribunal Ngai Tahu Report — Wai 27 (Brooker and Friend Ltd, Wellington, 1991) 3 WTR on the Ngai Tahu purchases; see also Waitangi Tribunal Te Whanganui-a-Orotu Report 1995 — Wai 55 (Brooker's, Wellington, 1995) chs. 3-4 on the Ahuriri purchase.
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chiefs in Maori society governed and determined directions for Maori communities.122

II. THE LEGAL SYSTEM - A TOOL OF ASSIMILATION,
COLONISATION AND SOCIAL CONTROL: ITS IMPACT UPON MAORI ACCESS TO JUSTICE 1865-1997

Imperial control from 1840-1852 over Maori affairs was designed to act as a buffer between Maori polities and settlers. The British tried to entrench that buffer zone when the four tier pattern of government Imperial, national, provincial and Maori - was elevated to constitutional status by the Constitution Act 1852. In remote areas, this pattern was successful and many Maori polities remained autonomous well into this century.123

But in areas where there was competition for land the British attempts to create a buffer zone failed.124 The settler Governments gradually imposed their colonial legal system on Maori. The imposition of European law as a tool of assimilation, colonisation and social control will now be considered.

A. The Undermining Of The Treaty Of Waitangi

In Wallis v Solicitor-General the Privy Council accepted that in the early years of the colony the Treaty of Waitangi determined Maori rights and interests in New Zealand.125 At a local level Fenton C.J. also acknowledged the importance of the Treaty in the founding of the colony.126 But in Wi Parata Bishop of Wellington Prendergast C.J. found that the colony was a settled territory and that Maori had no "kind of civil government, or any settled system of law."127 Although

  1. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTilcanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 132-133.

123 See generally J. Binney Redemption Songs, A Life of Te Kooti Arikirangi Te Turuki (Auckland University Press, Auckland, 1995).

  1. C. Orange The Treaty of Waitangi (Allen & Unwin Press, Wellington, 1988) chs. 7 & 8.

125 Wallis v Solicitor-General (1902-1903) [1840-1932] N.Z.P.C.C. 23, 26-27, 34.
126 Kauwaeranga Judgement (1984) 14 V.U.W.L.R. 227, 242.
127 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur. (NS) S.C. 72, 77.
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Prendergast C.J. conceded that there was a cession of a sorts under the Treaty of Waitangi, that was not important to the acquisition of sovereignty, for in his view the Treaty was nothing more that a "simple nul 1 ity."128 It was a nullity because Maori had no civil government and no law. This was the accepted position in New Zealand until 1941.129

In contemporary times it has been accepted that the Treaty of Waitangi cannot restrict the Parliamentary process13° and the orthodox position remains that the Treaty of Waitangi is unenforceable in a Court of law unless and until incorporated into statute.131 The Courts have tended to marginalise the Treaty of Waitangi to a document creating nothing more than political and moral obligations on the Crown. They have perpetuated the notion that the full doctrine of Parliamentary supremacy applies in New Zealand.132 But at least one judge, Lord Cooke, has indicated that fundamental questions about the constitutional position of the Treaty of Waitangi in New Zealand are still to be determined.133 He has also found that the Treaty has been acquiring some permeating influence in New Zealand law.134

B LAND ALIENATION

Crown purchasing of MaOrl. Land

The undermining of Maori Self-government, law and justice began with the alienation of Maori land and the extinguishment of aboriginal title.

128 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur. (NS) S.C. 76, 78.

129 Compare Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] A.C. 308.

130 P. McHugh The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Auckland, 1991) 149.

131 Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] A.C. 308, 324; New Zealand Maori Council v Attorney-General [1992] 2 N.Z.L.R. 576, 603.

132 See for example Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1992] 2 N.Z.L.R. 301.

133 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1992] 2 N.Z.L.R. 301, 305.

134 Te Runanga o to Ika Whenua & Anor v Attorney-General and Ors [1993] NZCA 218; [1994] 2 N.Z.L.R. 20, 27; In New Zealand Maori Council v Attorney-General [1996] 3 N.Z.L.R. 140, 168 a majority of the Court of Appeal did not expressly reject such an approach. Therefore the status of the Treaty of Waitangi in municipal law and the enforceability of its terms are issues that may not be settled.
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This was achieved through the acquisition of Maori land for nominal prices and then the on-sale to settlers at a significant increase in cost. By using the Crown's monopoly most of the South Island had been purchased by 1852.135 The speed of land alienation occurred through the efficient use of the Crown's right of pre-emption guaranteed in Article the Second of the Treaty of Waitangi - a right entrenched in the Constitution Act 1852.136

A Native Land Purchase Department was established in 1856. Under pressure to accelerate Crown purchasing of Maori land137 agents of the Department started to buy land without securing the consent of all the Maori owners.' 38 Alternatively they promised reserves and other benefits to induce sales - many of which were never provided.' 39 As a result of these tactics tribes began to resist large block land sales14° and by 1860 the pre-emption system had run its course. However, by this stage two thirds of the country had passed out of Maori hands.141

During the late nineteenth century the Crown continued purchasing Maori land direct from individual owners following hearings by the Native Land Court.142 In some cases, to protect Crown interests in a block, special legislation was passed to ensure that only the Crown could acquire shares from those Maori wishing to se11.143 The use of

135 See generally Waitangi Tribunal Ngai Tahu Report Wai 27 (Brooker and Friend Ltd, Wellington, 1991) 3 WTR.
136 Constitution Act 1852 (UK) 15 & 16 Vict., c. 72, s 73.

  1. K. Sinclair Origins of the Maori Wars (Auckland University Press, Auckland, 1974) 58.
  2. K. Sinclair Origins of the Maori Wars (Auckland University Press, Auckland, 1974) 58-60.

139 See for example D. Moore The Origins of the Crown's Demesne at Port Nicholson 1839-1846A Report to the Waitangi Tribunal (Wai 145 Doc# E-3 Pt. I 161-164, E-4 Pt. II 337-340, E-5 Pt. III 567-570) on the Crown's failure to recognise the promises of reserves made to secure Maori consent to sales in the Wellington region.

140 R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 148.

  1. R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 139.

142 A policy sanctioned by legislation such as the Native Land Amendment Act 1877 (NZ) 41 Viet., No. 31, s. 6.

143 See for example the Government Native Land Purchases Act 1877 (NZ) 41 Vict., No. 30, the Thermal Springs Acts 1881 (NZ) 45 Vict., No. 20, and the Urewera District Native Reserve Act 1896 (NZ) 60 Vict., No. 27.
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legislation to secure the purchase of land for the Crown reached a hiatus with the purchasing policies pursued by the Liberal Government from 1890 to 1911.144

In summary, the aggressive purchasing policies of successive governments resulted in Maori land alienation and this contributed to the decline in tribal authority and autonomy. Crown purchasing policies accelerated the imposition of Parliamentary sovereignty, law, and justice.

2. Raupatu

During the years 1850-1860 there occurred two very important developments.145 The first development was the establishment of settler government in 1852.146 The second was the rise of the Maori anti-land selling leagues. In Taranaki, the Maori movement was headed by leaders such as Wiremu Kingi. In Waikato, the leagues would hasten the formation of the Kingitanga (the King Movement). In the Hawkes Bay-Napier region, Maori would resist land sales until the introduction of the Native Land Court.147

In 1859 the settler Government and the Maori land leagues clashed after Governor Gore-Brown insisted on implementing a purchase of the Waitara block in Taranaki. His insistence on the purchase reflected the general settler desire to impose European authority, law, and justice on Maori.148 The block was offered for sale by Te Teira - an offer opposed by Wiremu Kingi.149 Gore-Brown's insistence on completing the purchase15° was the trigger that would lead to war.151

144 R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 154.

  1. A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) ch. 7.

146 The Abolition of Provinces Act 1875 (NZ) 39 Vict., No. 21.

147 A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) ch. 6.

148 J. Belich The New Zealand Wars and the Victorian Interpretation ofRacial Conflict (Auckland University Press, Auckland, 1986) 76-78.

149 A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) ch. 7.

150 J. Belich The New Zealand Wars and the Victorian Interpretation ofRacial Conflict (Auckland University Press, Auckland, 1986) 77-78.

  1. A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 114.

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During the wars the settler government passed the New Zealand Settlements Act 1863.152 The purpose of the Act (and its amendments of 1864, 1865 and 1866) was to punish those Maori who had taken up arms.153 In total there were five confiscations authorised by proclamations under the Act, in Taranaki, Waikato, Tauranga, Whakatane-Opotiki and Mohaka-Waikare.154 Between the years 1864 and 1867 the New Zealand Government confiscated approximately three and a quarter million acres of Maori tribal land.155 Under the 1863 Act, where the Governor in Council was satisfied that a Maori polity had been engaged in rebellion against the authority of the Crown, he could declare a rebel tribal area a district,156 to be set apart for settlement and colonisation,157 and within which military settlers were to have priority in land allocation.158

The effect of the raupatu (confiscations) was devastating on those Maori communities caught within the Districts established under the legislation.159 "Loyal Maori" were as affected by the legislation as those in rebellion 160 They all lost their aboriginal title and, even though some loyalists recovered their interests by Crown grant,161 many others did not.162 The Royal Commission in 1928 (the Sim Commission) would

152 New Zealand Settlements Act 1863 (NZ) 27 Vict., No. 8.

153 See for example House of Representatives N.Z.P.D. (1864-1866) 321-323 Fitzgerald's Speech on the introduction of the Outlying Districts Police Bill, Native Rights Bill, and the Native Lands Bill.

154 There were also confiscations pursuant to other legislation in other areas including the East Coast of New Zealand, where land was taken from 'rebels' under the East Coast Land Titles Investigation Act 1866 (NZ) 30 Vict., No. 27. An analysis of these confiscations is beyond the scope of this chapter.

  1. R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal
    History (Brookers Ltd., Wellington, 1995) 146.

156 New Zealand Settlements Act 1863 (NZ) 27 Vict., No. 8, s. 2.
157 New Zealand Settlements Act 1863 (NZ) 27 Vict., No. 8, s. 3.
158 New Zealand Settlements Act 1863 (NZ) 27 Vict., No. 8. s. 16.

159 See for example the impact on the Waikato tribes R. Mahuta "Tainui Kingitanga and Raupatu" in Wilson & Yeatman Justice & Identity Antipodean Practices (Bridget Williams Books, Wellington, 1995) 18; and see R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 142-146.
160 New Zealand Settlements Act 1863 (NZ) 27 Vict., No. 8, s. 5.
161 New Zealand Settlements Act 1863 (NZ) 27 Vict., No. 8, s. 5, 7.

162 Waitangi Tribunal Taranaki Report: Kaupapa Tuatahi — Wai 143 (Government Print Publications, Wellington, 1996) 10, 118.
2005 Tefimatanga Maori WomensAccess to Justice 243

later find that the war in Taranaki was "unjust and unholy."163 In respect of the other confiscations under the New Zealand Settlements Act 1863, the Sim Commission's findings are less persuasive. The Commission held: (a) that aspects of the confiscations in Waikato were justified but the amount of land taken was excessive;164 (b) in Tauranga the Commission believed that the confiscation was justified;165 and (c) in Whakatane-Opotiki the Crown's actions were considered just but excessive.166 These findings were based on poor research and investigation and, as noted by Boast, the report "...looks somewhat amateurish and superficial."167 Following the report of the Sim Commission, there were attempts made to settle the confiscations by the Rt. Hon. Peter Fraser and his government.I68 However, these settlements failed to adequately address all issues and the legacy of grievance left by the raupatu is only now being seriously addressed.169

In summary, the raupatu policies continued the process of Maori land alienation, they directly attacked tribal authority and autonomy and they accelerated the imposition of Parliamentary sovereignty, law, and justice.

3. The Native Land Acts

In 1862 the Native Land Purchase Department was abolished, but Maori still held 21 million acres of land. A new system to extinguish Maori title to land was required - a system that would replace Maori title with a Crown grant. This system was established by the Native Lands Act 1862.170 Just three years later, the Native land legislation

163 Report of the Royal Commission to Inquire into Confiscations of Native lands [1928] A.J.H.R., G-7, 11.

164 Report of the Royal Commission to Inquire into Confiscations of Native lands [1928] A.J.H.R., G-7, 14-16.

165 Report of the Royal Commission to Inquire into Confiscations of Native lands [1928] A.J.H.R., G-7, 19-20.

166 Report of the Royal Commission to Inquire into Confiscations of Native lands [1928] A.J.H.R., G-7, 21.

167 See R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 146.

168 R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 146.
169 See for example the Waikato Raupatu Claims Settlement Act 1995 (NZ).
170 Native Land Act 1862 (NZ) 26 Vict., No. 42.
244 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

was reviewed and this led to the passage of the Native Land Act 1865 which was designed to:171

... provide for the ascertainment of the persons who according to such [Maori] customs are the owners thereof and to encourage the extinction of such proprietary customs and to provide for the conversion of such modes of ownership into titles derived from the Crown and to provide for the regulation of descent of such lands.

During the period 1865-1900 the main function of the Court was to convert customary tenure into Crown derived titles. Although the Native land legislation allowed the imposition of restrictions on alienation thus giving the appearance of concern for Maori:172

At no time were alienation restrictions intended by the Government in office to be permanent restrictions which would create reservations for Maori. Rather, they were seen as necessary to slow the speed of alienation and to avoid Maori becoming paupers who might become dependent upon the State. They were to remain only until such time as Maori moved away from communalism, found their place in the colony and assimilated Pakeha ways of providing for themselves. In 1909, alienation restrictions were removed by law without any Court process or consultation with owners of land still subject to them. The Crown, on the other hand, retained the right to impose restrictions in favour of Crown purchasing of land blocks.

The Court encouraged individualisation by permitting partition of individual interests - thereby contributing to the loss of Maori land.'73 In ascertaining title, the Court took into account Maori customary law but would only apply that law where it conformed with the general

171 Native Land Act 1862 (NZ) 26 Vict., No. 42 Preamble, (emphasis added).

172 H. Bassett, R. Steel and D. Williams The Maori Land Legislation Manual Te Puka Ako Hanganga Mo Nga Ture Whenua Maori (Crown Forest Rental Trust, Wellington, 1994) Vol. 2, Appendix A, 24.

173 See The Solicitor General v Tokerau District Maori Land Board Ors [1913] 32 N.Z.L.R. 866; The King v Waiariki District Maori Land Board [1992] 41 N.Z.L.R. 417.
2005 Te Timatanga Maori WomensAccess to Justice 245

objectives of assimilation, individualisation and alienation.174 For example, it could have applied the Maori customary law of succession,175 but chose to develop the succession in equal shares to all children rule - first laid down in the Papakura Case.176 During the period 1865-1900 the burden of attending Court sittings would take its personal and financial toll on Maori land owners177 and Court towns became tenements for diseases.178

After 1900, the Native Land Court assumed adjudicative and administrative functions such as supervising alienation and development. From 1900-1952, it shared these responsibilities with the Maori Land Councils initially created under the Maori Lands Administration Act 1900.179 The legislation conferred on these councils extensive powers in relation to the administration of Native lands,18° including a veto power over alienation,181 and significant land development functions.182 The establishment of the Councils (later to become Boards) did not arrest alienation, few Maori were involved with the Boards,183 and the alienation of Maori land continued. The Maori Affairs Act 1953 did not reverse the impact of the previous Maori land statutes. Succession, partitions and procedures for alienation and changing status all continued to facilitate alienation until at least 1974. In addition, two new powers to facilitate alienation were added to the legislation. Under Part 24 of the 1953 Act, titles to Maori land could be consolidated for management by the Board of Maori Affairs - regardless of the wishes of the owners.

175 Native Lands Act 1865 (NZ) 29 Vict., No. 71, s. 30.

176 A. Ward A Show offustice, Racial Amalgamation in the Nineteenth Centruy, New Zealand (Oxford University Press, Auckland, 1974) 187.

177 R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995).

178 R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 152-153.

179 R. Boast "The Law and the Maori" in Spiller, Finn & Boast A New Zealand Legal History (Brookers Ltd., Wellington, 1995) 156.
180 Maori Lands Administration Act 1900 (NZ) 64 Vict., 55 ss. 9, 21, 22.
181 Maori Lands Administration Act 1900 (NZ) 64 Vict., 55 ss. 22, 29.
182 Maori Lands Administration Act 1900 (NZ) 64 Vict., 55 ss. 28,31.

  1. A Mikaere The Balance Destroyed:• The Consequences for Maori Women of the
    Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 136.

246 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

In addition, the Maori Land Court could vest uneconomic Maori land interests (not exceeding 25 pounds in value) in the Maori Trustee again regardless of the wishes of the owners."

In summary, the Maori land legislation continued the process of Maori land alienation and contributed to the decline in tribal authority and autonomy.

C. Concessions to Maori Autonomy

Following the signing of the Treaty of Waitangi, Maori tribes and sub-tribes believed they retained unto themselves their tino rangatiratanga (inherent sovereignty).185 Many Maori polities, those who signed the Treaty and those who did not, continued to behave as sovereign entities following the assertion of British sovereignty.I86 During the period 18601900, on issues of national importance, Maori continued to organise collectively at both a national and local level." They continued to resist the assertion of colonial sovereignty. Examples of these national movements include the Land Leagues, the Kingitanga (Maori King Movement), the Hauhau and Pai Marire Movements (Religious Cults), Kauhanganui, the Repudiation Movements, and the Kotahitanga Movement (Maori Parliament).188 An example created during the twentieth century has been the Maori Congress.'

Evidence on the European responses to these Maori movements suggest that successive Governments were forced to concede to Maori demands for more autonomy. For example, legislation recognising Maori

184 Maori Affairs Act 1953 (NZ) No. 94, Part 13 repealed by the Maori Affairs Amendment Act 1974 (NZ).

  1. L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) 3-4.
  2. L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) ch. 4.
  3. L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) ch. 4.

188 L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) ch. 4.

  1. L. Cox Kotahitanga.• The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) ch. 7.

2005 Te17matanga Maori Womens Access to Justice 247

rights to exercise regulatory functions was enacted by the settler Government in 1858.1" This legislation was used to develop the Maori runanga system. These early runanga dealt with political and social issues, as well as legal matters. But from the beginning of the scheme, there were major problems. In all but a few Maori districts, the runanga generally lacked significant Maori support.191 Maori preferred to continue to determine their disputes in accordance with Maori law and justice, and they would resent any interference from the Resident Magistrates or District Runanga.192 Settlers criticised the system and the colonial government eventually withdrew much of its support following the outbreak of war.193 The system was discontinued in 1865.194

Another example is the Maori Representation Act 1867 which established the four Maori seats in Parliament and was a concession to the loyalist tribes who had fought with the British.195 In this regard Belich has noted that:196

190 L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) 80-90; Native Districts Regulation Act 1858 (NZ) 21 & 22 Vict., No. 41; Native Circuit Courts Act 1858 (NZ) 21 & 22 Vict., No. 42.

  1. A. Ward A Show of Justice, Racial Amalgamation in the Nineteenth Century, New
    Zealand (Oxford University Press, Auckland, 1974) ch. 9-10.

192 A. Ward A Show ofJustice, Racial Amalgamation in the Nineteenth Century, New Zealand (Oxford University Press, Auckland, 1974) 142-143.

193 L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) 88.

194 L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University Press, Auckland, 1993) 88-89; see also the Resident Magistrates Act 1867 (NZ) 31 Vict., No 13 repealed by the Magistrates Court Act 1893 (NZ) 57 Vict., No. 55.

195 See the Maori Representation Act 1867 (NZ) 31 Vict., No. 47; see also J. Belich Making Peoples (Allen Lane, Penguin Press, Australia, 1996).

196 J. Belich Making Peoples (Allen Lane, Penguin Press, Australia, 1996) 244; The Maori Representation Act 1867 followed the convening of the Native Commission, constituted under the Native Commission Act 1865 (NZ) 29 Vict., No. 12. The Commission's function was to examine and report to the Governor on the most expedient mode of defining an electoral franchise for Maori pending the conversion of their aboriginal title to a Crown derived title. The Commission could also advise on any matter relating to or affecting the interests and well-being of Maori referred to them from the Governor.
248 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

The disengagement of imperial troops, completed by 1866, left the colonial government more dependent on local allies, and more willing to conclude bargains favourable to them - including the four Maori seats in Parliament.

Later in the century, and despite the continuous undermining of Maori authority through the promotion of policies designed to facilitate land alienation, the Crown was forced to respond to Maori demands for more autonomy with legislative schemes designed to recognise and affirm limited rights to administer Maori self-government, law and justice. Examples include the Maori Councils Act 1900 which was a response to demands from the Kauhanganui and Kotahitanga movements for more autonomy. The Maori Social and Economic Advancement Act 1945 followed the Maori war effort. Both these Acts authorised Maori Councils (later Tribal Committees) to make bylaws over matters such as housing and sanitation matters, nuisance, certain family matters, stock, fisheries, and minor offending within Maori villages. However, these by-law functions were not continued into the Maori Welfare Act 1962 (now the Maori Community Development Act 1962). These measures all represent attempts to address Maori demands for "rangatiratanga" (Maori sovereignty, autonomy and self-government). But these statutes were flawed because they generally vested too much supervisory power in the Crown, thereby undermining Maori autonomy, and they were never adequately resourced.197

In summary, concessions to Maori autonomy did not arrest the decline in tribal authority and they did not prevent the full imposition of Parliamentary sovereignty, law, and justice.

D. The Impact of Statute Law on Maori Law and Access to justice

The use of statute law to suppress Maori rights, their values, customs and norms has had a major impact on Maori. For example, extreme legislation was passed in Taranaki where the Government's raupatu policies led to resistance from the pacifist prophets, Te Whiti and

197 L. Cox Kotahitanga: The Search for Maori Political Unity (Oxford University

Press, Auckland, 1993) 108.
2005 Te Timatanga &Mori Womens Access to Justice 249

Tohu.I98 These prophets and their followers attempted to prevent, through peaceful means, the implementation of surveys and the encroachment of settlers onto their lands. The Government responded to their resistance by enacting the Maori Prisoners Trials Act 1879, the Maori Prisoners Act 1880 and the West Coast Settlement (North Island) Act 1880, which together combined to permit the arrest of these Maori leaders and their followers and authorised their imprisonment for long periods without charge or tria1,199 thus denying Maori access to British and Maori justice.

Another example has been the use of statute law to over-turn decisions of the Privy Council favourably recognising Maori rights to land held under their laws and customs. For example, in Tamaki v Baker the Privy Council found that mere assertion of title by Crown grant was not sufficient to extinguish Maori aboriginal title.20° The response of the colonial state to the decision of the Privy Council was swift: rather than review the Government's previously unlawful practice, Parliament simply passed legislation over-ruling the Privy Council decision.20I In Wallis v Solicitor-General the Privy Council upheld claims based on aboriginal title 202 Upset by the criticism of the Privy Council, the colonial judges marched through the streets of Wellington in protest.203 The by now predictable response from the government was to enact legislation to overcome the effects of the Privy Council's decision.204 The legislation would declare that aboriginal title was unenforceable as against the Crown and this remained the statutory position from 1909 until 1993 when the relevant provision was repealed by the Te Ture Whenua Maori (Maori Land) Act 1993.

198 Waitangi Tribunal Taranaki Report: Kaupapa Tuatahi — Wai 143 (Government Print Publications, Wellington, 1996) 10.

199 Maori Prisoners Trials Act 1879 (NZ) 43 Vict., No. 3; Maori Prisoners Act 1880 (NZ) 44 Vict., No. 4; West Coast Settlement Act 1880 (NZ) 44 Vict., No. 39.
200 Nireaha Tamaki v Baker (1900-1901) [1840-1932] N.Z.P.C.C., 371, 383.
201 Land Titles Protection Act 1902 (NZ) 2 Edw. VII., No. 37.
202 Wallis v Solicitor-General (1902-1903) [1840-1932] N.Z.P.C.C. 23, 26-27, 34.

203 P. McHugh The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Auckland, 1991) 117-120.
204 Native Lands Act 1909 (NZ) 9 Edw VII, No 15, s. 84.
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Legislation such as the Tohunga Suppression Act of 1907 made it an offence for Maori tohunga to engage in their art,205 attacking thereby the very foundation of Maori spiritual and religious practice. As a result of the legislation, Mikaere notes, not "only was Maori expertise in childbirth practices lost, but health practices generally, all of which embodied a major spiritual component were banned."206 In the areas of health and education statute law and policy resulted in the demise of Maori practices and the decline of the Maori language.207

In addition, although Maori continued to exercise local self-government under the Maori Councils Act 1900 and under the Maori Social and Economic Advancement Act 1945, their authority to manage their villages and rural zones was undermined by the growth in local authorities and the extension of local authority powers under legislation such as the Town-Planning Act 1926. For example, under the 1926 Act city, borough, and county councils were vested with responsibility for preparing planning schemes. Under ss. 22 and 27 of the 1926 Act, these local authorities were vested with the power to do all that was necessary to implement the planning schemes. These powers were continued into the Town and Country PlanningAct 1953. With the advent of planning schemes, it became increasingly difficult to build on Maori rural land or to use that land in a manner inconsistent with the planning schemes. It was not until the Town and Country Planning Act 1977 that the relationship between Maori and their culture and traditions with their ancestral lands had to be taken into account in the planning process.208 However, even that Act did not arrest the impact of the legislation on Maori. This was a matter considered in 1980 during the hearings held by the Royal Commission of Enquiry into the Maori Land Court. A number of submissions were presented detailing the difficulties of building on and utilising Maori land as a result of planning legislation.209

205 Tohunga Suppression Act 1907 (NZ) 7 Edw VII, No 13, s. 2.

206 A Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 125.

207 See Waitangi Tribunal Te Reo Report Wai 11 (Govt. Print, Wellington, 1986) for impacts on Maori Language.
208 Town and Country Planning Act 1977, s. 3 (1)(g).

209 The Royal Commission of Enquiry Report on the Maori Land Court (1980) AJHR, ch. 19, 122-125.
2005 Te Timatange Maori Womens Access to Justice 251

The planning process, Maori land alienation,210 Maori land fragmentation211 and government policies all contributed to Maori urbanisation:212

Maori people went to the cities looking for jobs because government assimilation policies in the 1950s and 60s encouraged this, and because it was in accordance with an economic fact first pointed out by the economist Horace Belshaw in 1940: "... there is an unambiguous picture of a people whose land resources are inadequate, so that a great and increasing majority must find other means of livelihood."

These factors, coupled with the Maori population recovery in the 1940s-1960s, made urbanisation inevitable for the "upsurge in the Maori population was to mean that the available land was not sufficient to support the increasing numbers.213 Other factors contributing to urbanisation have been identified by Mikaere:214

Maori migration to the urban centres was hastened by the need for labour in the factories during the second world war and, following the war, by the Maori Affairs Department policy of restricting housing loans to those people prepared to buy properties in town.

Urbanisation has occurred rapidly and has impacted on the social and political structures of Maori society. As a result of urbanisation whanau, hap and iwi have been subject to enormous social, cultural and financial stress.215 This in turn has resulted in an increasing number of Maori

  1. A Mikaere The Balance Destroyed.• The Consequences for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 115.
  2. A Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 115.

212 G. Asher & D. Naulls Maori Land (NZ Planning Council, Wellington, 1987) 43.
213 G. Asher & D. Naulls Maori Land (NZ Planning Council, Wellington, 1987) 42.

214 A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 115.

215 J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 22-24.
252 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

individuals appearing before the Family and Criminal courts.216 It is to the impact of the criminal justice system and family law that we now turn.

E. The Chmina/ Justice System And Family Law

The European model for the administration of criminal justice was established very early on in the history of the colony. However, as we have noted, there were some concessions made to Maori law and justice. It was only in 1962 that the remnants of these legislative concessions were repealed. The provisions repealed included the jurisdiction of tribal committees established under the Maori Social and Economic Advancement Act 1945 to hear minor summary offences and breaches of tribal bylaws217 and the provision in the Juries Act 1908 which recognised the right of Maori defendants to have their cases heard before Maori juries.218 Now all adult criminal cases are heard in the Criminal Courts and there is no distinction drawn between offenders.

In some District Courts the use of Maori protocol has been actively discouraged.219 There is no direct participation from the Maori community in establishing the guilt of adult offenders - consequently Maori victims and their whanau are not able to participate in the criminal justice process. It is therefore a process that alienates both the accused and the victim rather than a process that restores balance to them or their whanau.22° There is, however, provision for the cultural background of the offender to be taken into account during sentencing,221 but rarely will the Courts consider Maori values or norms as justification for "criminal" behaviour. For example in R v Hawkins222 the Crown

216 See M. Sorrenson "Modern Maori the Young Maori Party to Mana Motuhake in K. Sinclair (ed) Oxford Illustrated History of New Zealand (Oxford University Press, Auckland, 1996) 321, 340-341 and discussion on the impact of urbanisation and the increase in Maori crime rates.
217 Maori Social and Economic Advancement Act 1945 (NZ) ss. 30-47.
218 Juries Amendment Act 1962 (NZ).
219 Mair v District Court at Wanganui [1996] 1 N.Z.L.R. 556.

220 Compare, Inside New Zealand Marae Justice-Aroha Terry (Documentary, August, 1994).
221 Criminal Justice Act 1987 (NZ), s. 17.
222 R v Hawkins [1993] B.C.L. 138.
2005 Te Timatanga Maori Womens Access to Justice 253

successfully pursued an appeal in a case where the accused had been charged with wounding with intent to cause grievous bodily harm. During sentencing the accused had argued that he had been provoked by a breach of tapu when the complainant had sat on a kitchen table. In the District Court the trial judge found that the Maori protocol relied on in this case was a "special circumstance" to be taken into account during sentencing as contemplated by section 5 of the Criminal Justice Act 1985. On appeal it was held that the breach of tapu was wrongly classified as a "special circumstance" and the sentence of 9 months periodic detention entered by the District Court was quashed and substituted with a 2 year term of imprisonment.

The Maori imprisonment rate indicates that Maori are disproportionately over-represented in the prison system.223 The general Maori perception of the criminal justice system is that it discriminates against Maori and there have been demands made for a parallel justice system.224

In addition, common law rules applied by the New Zealand Judiciary have undermined Maori values and norms associated with the Maori whanau. For example, as early as 1888 the Courts in New Zealand declared that all customary marriages must be celebrated in the same way as English common law marriages, thus failing to recognise that Maori customary marriages were different to European marriages.225 This approach to Maori customary law is to be compared to that of the Privy Council which in 1919 held that the right of Maori to modify their adoption customs was not interfered with by the Adoption of Children Act 1895.226 However, this victory was one in form only as the

223 Justice Department Statistics 1995 indicate the Maori male prison population at 52% and the Maori female prison population at over 60%.

224 See generally M. Jackson He Whaipainga Hou the Maori and the Criminal Justice System (Department of Justice, Wellington, 1988); Inside New Zealand Marae Justice-Aroha Terry (Documentary, August 1994); J. Tauri "Indigenous Justice or Popular Justice?" in P. Spoonley, D. Pearson, C. MacPherson (eds) Nga Patai: Racism and Ethnic Relations in Aotearoa/New Zealand (Dunmore Press, Palmerston North 1996); J. Tauri "VUW Criminology Department Newsletter" (September 1996).

225 See Rira Peti v Ngarahi to Paku (1888) 7 N.Z.L.R. 235; Rex v Wairemu Kingi (1909) G.L.R. 175; In re Wi Tamahau Mahupuku (Deceased), Thompson & Anor. v Mahupuku (1932) G.L.R.
226 Hineita Rirerire Arani v Public Trustee [1840-1932] (1919) N.Z.C.C. 1, 5.
254 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

Government by this time had enacted the Native Lands Act 1909, expressly declaring Maori customary adoption practices (entered into after the enactment of the 1909 Act) to be of no legal effect.227

The family law statutes enacted since 1950 reflect the periods assimilationist policies "largely by ignoring Maori social policies and objectives, as if they did not exist."228 Two of the statutes directly or indirectly reject Maori approaches - namely the Adoption Act 1955 and the Marriage Act 1955. No Maori customary marriage could be considered valid for any purpose following the Maori Purposes Act 1951 and the Maori Affairs Act 1953.229 The Marriage Act 1955 was passed following the introduction of these statues and the overall effect of these three statutes has been the denial of the validity of Maori marriage practices.23° The Adoption Act 1955 deems that since the commencement of the Native Land Act 1909 no person has been capable of adopting a child in accordance with Maori custom.231

As Hall and Metge point out, recognition of Maori values and norms is conspicuously absent from the Guardianship Act 1968, the Matrimonial Property Act 1976, the Family Proceedings Act 1980 and the Domestic Violence Act 1995.232 Instead these statutes reflect European family values and norms, many of which conflict with "Maori understandings and practices regarding the family."233

227 Native Lands Act 1909 (NZ) s. 161.

228 D. Durie-Hall & Joan Metge "Kua Tutu Te Puehu, Kia Mau, Maori Aspirations and Family Law" in M. Henaghan & B. Atkin & (ed) Family Law Policy in New Zealand (Oxford University Press, Auckland, 1992) 54, 59.
229 Maori Affairs Act 1953 (NZ) s. 79 (1).

230 D. Durie-Hall & Joan Metge "Kua Tutu Te Puehu, Kia Mau, Maori Aspirations and Family Law" in M. Henaghan & B. Atkin & (ed) Family Law Policy in New Zealand (Oxford University Press, Auckland, 1992) 54, 62-63.

  1. Adoption Act 1955 (NZ) s. 19(1); see also Whittaker v Maori Land Court [1996]
    N.Z.F.L.R. 163.

232 D. Durie-Hall & Joan Metge "Kua Tutu Te Puehu, Kia Mau, Maori Aspirations and Family Law" in M. Henaghan & B. Atkin & (ed) Family Law Policy in New Zealand (Oxford University Press, Auckland, 1992) 54, 59.

233 D. Durie-Hall & Joan Metge "Kua Tutu Te Puehu, Kia Mau, Maori Aspirations and Family Law" in M. Henaghan & B. Atkin & (ed) Family Law Policy in New Zealand (Oxford University Press, Auckland, 1992) 54.
2005 Te Timatanga Maori Womens Access to Justice 255

As a result, the success of attempts to raise Maori issues in family law proceedings depends very much on the discretion of the judges. For example, attempts to rely on Article 2 of the Treaty of Waitangi in guardianship proceedings have been expressly rejected by the Courts.234 In adoption cases the Courts will not usually decline adoption orders on the basis of Maori values and norms,235 although some judges have been prepared to consider future access in favour of whanau members.236 The Family Court has not been prepared to recognise special rules for any segment of the population - particularly MAori.237 However it has accepted the importance of Maori culture to the welfare of the child in some guardianship cases.238 In other cases the Family Court has expressly rejected Maori attempts to obtain custody of children on the basis of their blood relationships.239

Maori values and norms have been significantly under-utilised in the procedure of the Family Courts established by the Family Courts Act 1980. While there have been cases heard on marae, there are instances where requests for this procedure have been rejected.24° Therefore, the extent to which Maori values and norms are used during Family Court proceedings remains an issue subject to the discretion of the judges.

234 R v R (1990)6 F.R.N.Z. 232; see also discussion by B. Atkin & G. Austin "Cross Cultural Challenges to Family Law in Aotearoa/New Zealand" in N. Lowe & G. Douglas Families Across Frontiers (Martinus Nijhoff Publishers, Netherlands, 1996) 330-331.

235 See for example Hamlin v Rutherford (1989) 5 N.Z.F.L.R. 426, T v S (No. 1) [1990] N.Z.F.L.R. 411, Re M (Adoption) [1994] 2 N.Z.L.R. 237 compare Re Adoption of A [1992] N.Z.F.L.R. 422 and Application by C [1990] N.Z.F.L.R. 280; see also discussion by B. Atkin & G. Austin "Cross cultural Challenges to Family Law in Aotearoa/New Zealand" in N. Lowe & C. Douglas Families Across Frontiers (Martinus Nijhoff Publishers, Netherlands, 1996) 335-339.
236 T v S (No 1) [1990] N.Z.F.L.R. 411.

237 Rikihana v Parson (1986) 4 N.Z.F.L.R. 289; see also discussion by B. Atkin & G. Austin "Cross Cultural Challenges to Family Law in Aotearoa/New Zealand" in N. Lowe & G. Douglas Families Across Frontiers (Martinus Nijhoff Publishers, Netherlands, 1996) 340.
238 Makiri v Roxburg (1988) 4 N.Z.F.L.R. 673.

239 T v F (1996) 14 N.Z.F.L.R. 415; compare B v M (1996) 14 F.R.N.Z. 690.

240 B. Atkin & G. Austin "Cross Cultural Challenges to Family Law in Aotearoa/ New Zealand" in N. Lower & G. Douglas Families Across Froniers (Martinus Nijhoff Publishers, Netherlands, 1996) 327, 343-344; and see Stewart v Stewart (1992) 9 F.R.N.Z. 167.
256 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

E. The Rise Of The Treaty

Since 1975 many statutes have been enacted recognising the principles of the Treaty of Waitangi. The most important of these statues has been the Treaty of Waitangi Act 1975 which authorised the establishment of the Waitangi Tribunal. Heralded as a new forum for Maori justice, the Waitangi Tribunal has been gradually uncovering the history of the law as a tool of colonisation and social control. During the period 19751997 it has reported on a significant number of the 650 or more claims before it. These reports have been used by Maori claimants to negotiate with the Crown to achieve settlements of historic grievances caused by actions and policies of the Crown. Several significant settlements have been achieved - for example the 1992 Sealords Settlement. However, the process for the resolution of claims is slow and is hindered by political and financial constraints.241 Fundamental issues regarding the need for constitutional change based on the Treaty of Waitangi are only now being debated outside Maori circles.242

In addition, while other statutes such as the State Owned Enterprises Act 1986, the Conservation Act 1987 and the Resource Management Act 1991 have been used successfully by Maori to pursue Maori claims, ultimately the resolution and settlement of these claims remain matters to be determined by negotiation between Crown and Maori - a process again subject to political and financial constraints.

F Impact Of Colom:sation On /Won Women And TheirAccess To Justice 1865-1997

During the 1850s and 1860s, Maori women continued to play important and active roles in their communities, particularly those involved with the Maori land leagues and the Maori wars.243 Maori women and their

  1. C. Wickliffe "The Waitangi Tribunal: A Critique, The Need for a Regional Human Rights Mechanism" (1996) 2 NZLL 125.

242 Conference Treaty of Waitangi: Maori Political Representation (Pipitea Marae, Wellington, May 1-2 1997).

  1. A. Mikaere The Balance Destroyed: The Consequences for Maori Women ofthe Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 133-134; see also S. Coney "War and Peace" in S. Coney (ed) Standing in the Sunshine (Penguin Books, Auckland, 1993) 302-303 where it is noted that Maori women fought either for or against the Crown depending on tribal loyalties.

2005 Te Timatanga Maori WomensAccess to Justice 257

families suffered from land alienation and the raupatu policies and at Parihaka it was the women and children who were at the front of the ranks with their men protecting Te Whiti and Tohu during the invasion by the Constabulary.244

In leadership matters Maori women continued to maintain prominent positions in Maori communities. For example, Te Paea, sister of King Tawhiao, who was famous for her skills as a peace maker and mediator,245 persuaded Ngati Kahungungu to cease their pursuit of Te Kooti into the Urewera district in the period 1868-1870.246 Te Kooti himself was assisted in his escape in 1870-1871 into the Ureweras by his wife Makurata.247 Later in the century Ani Kaaro, grand-daughter of Patuone, was consulted by Waikato chiefs before the signing of the Treaty of Union between Waikato and Nga Puhi in 1885.248 Other women assumed major roles in the Maori spiritual and religious cults such as the Ringatu.249

There were Maori women who resisted and protested against the Native land legislation.25° They were particularly upset about the gradual erosion of their property rights by provisions which granted to their husbands the right to be a party to deeds of disposition following a Native Land Court hearing.251 Hohepa points out that this "...meant that customary dealings in land were not only subject to assimilation practices but also to gendered views on Mana Wahine."252

  1. D. Scott Ask that Mountain, the Story of Parihaka (Henemann/Southern Cross, Auckland, 1987) 113-114.
  2. J. Binney Redemption Songs, A Life of Te Kooti Arikirangi Te Turuki (Auckland University Press, Auckland 1995) 238.

246 J. Binney Redemption Songs, A Life of Te Kooti Arikirangi Te Turuki (Auckland University Press, Auckland 1995) 240.

  1. J. Binney Redemption Songs, A Life of Te Kooti Arikirangi Te Turuki (Auckland University Press, Auckland 1995) 261.

248 C. Orange The Treaty of Waitangi (Allen & Unwin Press, Welllington, 1987) 217.

249 See generally J. Binney "Some Observations on the Status of Maori Women" (1989) 23 No. 1 N.Z.J.H. 22.

250 T. Rei Mciori Women and the Vote (Huia Publishers, Wellington 1993) 9; T. Rei "Women in Kotahitanga" and S. Coney "Te Hui Wahiine" in S. Coney (ed) Standing in the Sunshine (Penguin Books, Auckland, 1993) 284-285.

251 Native Land Act 1873 (NZ) 37 Vict. No. 56, s. 86; see also A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in the Women's Kotahitanga Movement of the 1890s" (1993) 27 No. 2, N.Z.J.H. 127, 134-135.

  1. P. Hohepa & D. Williams The Taking into Account of Te Ao M5ori in Relation to Reform of the Law of Succession (Law Commission, Wellington, July 1996) 29.

258 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

The influence of European culture eventually reached into the core of Maori society. When European law was applied to Maori women their status was reduced to that of their European counterparts. Examples include the discriminatory provisions in the Native Land legislation, the common law rules relating to succession to matrimonial property, the status of women following marriage, complicated divorce laws which differed to those applied following the end of a customary marriage, the common law right of a husband to discipline and/or rape his spouse and the imposition of the Christian marriage ceremony. All contributed to the declining status of Maori women.253 To make matters worse, and as colonisation proceeded, Maori began to internalise European patriarchal values and Maori men assimilated these views with a vengeance.254 For example, Binney has reproduced oral evidence from fleni Sunderland, born in 1916, a prominent woman of the Rongowhakaata tribe, who recalls her resistance to the introduction of chairs on the paepae of marae and their allocation to men only.255

On national political matters, consistent with the position taken by European men, Maori men resisted the franchise for Maori women in the Maori Parliament (Te Kotahitanga).256 In response women such as Meri Mangakahia of Te Rarawa and Akenehi Tomoana petitioned for the right of Maori women to vote in Te Kotahitanga - a right finally granted in 1897.257 There were many powerful women associated

253 A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the

Colonisation of Tikanga Maori (Unpublished J.Jur Thesis, Waikato University, 1995) 109-122.

254 P. Hohepa & D. Williams The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession (Law Commission, Wellington, July 1996) 29 where Hohepa illustrates the extent to which these views have been internalised. He quotes an example from 1981 of men challenging, on the basis of gender, the right of women to be trustees on a Maori land block.

255 J. Binney "Some Observations on the Status of Maori Women" (1989) 23 No. 1 N.Z.J.H. 22, 28-29.

256 T. Rei Maori Women and the Vote (Huia Publishers, Wellington, 1993) 17-18; see also A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in Women's Kotahitanga Movement of the 1890's" (1993) 27 No. 2, N.Z.H.H. 127.

257 T. Rei Miiori Women and the Vote (Huia Publishers, Wellington, 1993) 17-18; see also A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in Women's Kotahitanga Movement of the 1890's" (1993) 27 No. 2, N.Z.H.H. 127.
2005 Te Timatanga Maori Womens Access to Justice 259

with the Kotahitanga and some of these women have been identified by Ballara.258 These Maori women began the movement to organise collectively as women and Meri Mangakahia's work would act as the "catalyst for the formation of Nga Komiti Maori - tribally based Maori women's committees..."259 The committees held meetings to discuss "issues such as land, the general state of Maori people and the political issues of the day."26° The committees subsequently became known as village women's committees and they continued to operate on most marae until World War 11.261

After the war, the need for separate Maori women's committees continued as so few women were appointed to tribal committees established under the Maori Social and Economic Advancement Act 1945.262 With the assistance of welfare officers employed under the 1945 Act, women's welfare committees were established and by 1950 there were over 180 committees. In 1951, these committees would form the nucleus for the establishment of the Maori Women's Welfare League (MWWL).263 Te Puea of Waikato was its patron and Whina Cooper its inaugural president.264 With this leadership the MWWL

258 A. Ballara "Wahine Rangatira Maori Women of Rank and their Role in Women's Kotahitanga Movement of the 1890's" (1993) 27 No. 2, N.Z.H.H. 127, 131133.

259 T. Rei "Nga Roopu Wahine Maori, Maori Women's Organisations" in A. Else (ed) Women Together, Me Aro Koe ki to Haa o Hineahuone (Daphne Brasell, Wellington, 1993).

260 T. Rei "Nga Roopu Wahine Maori, Maori Women's Organisations" in A. Else (ed) Women Together; Me Aro Koe ki to Haa o Hineahuone (Daphne Brasell, Wellington, 1993).

261 T. Rei "Nga Roopu Wahine Maori, Maori Women's Organisations" in A. Else (ed) Women Together; Me Aro Koe ki to Haa o Hineahuone (Daphne Brasell, Wellington, 1993); and see A. Rogers & Miria Simpson (eds) Te Timatanga Taatau Taatau, Early Stories from Founding members of the Maori Women's Welfare League (MWWL— Bridget Williams Books, Wellington, 1993) xii-xviii.

262 T. Rei "Nga Roopu Wahine Maori, Maori Women's Organisations" in A. Else (ed) Women Together; Me Aro Koe ki to Haa o Hineahuone (Daphne Brasell, Wellington, 1993); see also L. Cox Kotahitanga The Seach for Maori Political Unity (Oxford University Press, Auckland, 1993) 132-133.

  1. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the
    Colonisation of Tikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 138.

264 A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 138.
260 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

attacked issues such as the need for Maori language in schools and kindergartens,265 Maori women's and children's health and welfare issues,266 and improving Maori housing conditions.267 Since its inception, the MWWL has taken a keen and active interest in access to justice issues. For example, members of MWWL have either worked as welfare officers appointed under the Maori Community Development Act 1962, as social workers, matua whangai workers or as volunteers in the European justice system.268 These attempts to organise have been undermined by the State and by Maori men. In 1962, Maori men successfully lobbied European male politicians for the establishment of a State funded national body dominated by Maori men - this resulted in the establishment of the New Zealand Maori Counci1.269 That the MWWL has survived despite this opposition is testimony to the leadership skills of Maori women.

There have been many exceptional Maori women who have participated across the Maori social, political and cultural spectrums.27° For example, Iriaka Ratana (the first Maori woman Member of Parliament) and Whetu-Tirikatene Sullivan represent a generation who saw the necessity for active participation in Parliament to ensure the abolition of oppressive laws that have affected Maori. Other Maori women have led the Maori

265 T. Rei "Nga Roopu Wahine Maori, Maori Women's Organisations" in A. Else (ed) Women Together, Me Aro Koe ki to Haa o Hineahuone (Daphne Brasell, Wellington, 1993).

266 A. Mikaere The Balance Destroyed: The Consequences for Maori Women ofthe Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 138.

267 A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 138.

268 A. Rogers & Miria Simpson (eds) Te Timatanga Taatau Taatau, Early Stories from Founding Members of the Maori Women's Welfare League (MWWL —Bridget Williams Books, Wellington, 1993) 50, 68-69, 229 237, 256.

269 T. Rei "Nga Roopu Wahine Maori, Maori Women's Organisations" in A. Else (ed) Women Together, Me Aro Koe ki to Haa o Hineahuone (Daphne Brasell, Wellington, 1993); A. Mikaere The Balance Destroyed: The Consequence for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 139.

270 T. Rei "Nga Roopu Wahine Maori, Maori Women's Organisations" in A. Else (ed) Women Together, Me Aro Koe ki to Haa o Hineahuone (Daphne Brasell, Wellington, 1993).
2005 Te Timatanga Maori WomensAccess to Justice 261

activist movement against those same oppressive laws: figures such as Eva Rickard, Nganeko Mihinnick, Titewhai Harawira, Hilda Harawira, Donna Awatere-Huata, Ripeka Evans and Atareta Poananga immediately spring to mind. On health matters women such as Dr Paparangi Reid and Irihapeti Ramsden have worked tirelessly for health reforms that will be beneficial for Maori. Challenging institutions of law from within the legal profession are women such as Denise Henare, Annette Sykes, Gina Rudland, Moana Maniapoto, and many others. These women are assuming prominent positions in the profession and/ or are using their legal skills to raise awareness about the impact of the law as a tool of assimilation, colonisation and social control.

However, and despite the achievements of these Maori women, the law as a tool of assimilation, colonisation and social control has taken its toll on the status and role of the great majority of Maori women.27' Maori women have generally been marginalised in the political decision making process including the settlement of Maori claims. Politicians continue to prefer to hear the Maori male voice - a matter that has resulted in the filing of the Mana Wahine claim to the Waitangi Tribunal.272

III. CONCLUSIONS

Dr Mason Durie has stated that if;273

... one objective of the Treaty of Waitangi was to minimise disadvantages to Maori people as a result of colonisation, then indices of well-being are particularly relevant to determine outcomes of that objective. In fact, comparisons between Maori and non-Maori reveal alarming disparities for almost every measure of well-being, including health, education, housing, employment, income, and crime.

  1. A. Mikaere The Balance Destroyed: The Consequences for Maori Women of the Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 109-122; see also discussion by J. Metge New Growth from Old, The Whanau in the Modern World (Victoria University Press, Wellington, 1995) 24.

272 A. Mikaere The Balance Destroyed: The Consequences for Maori Women ofthe Colonisation ofTikanga Maori (Unpublished M.Jur Thesis, Waikato University, 1995) 146-148.

  1. M. Durie, "The Treaty of Waitangi: Perspectives on Social Policy" in H. Kawharu (ed) Waitangi Maori and Pakeha Perspectives of the Treay of Waitangi (Oxford University Press, Auckland, 1989) 285.

262 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2

Indices of well-being indicate that Maori have been unfairly disadvantaged by the colonising process, that tribal autonomy has not been respected and that Maori political, social and economic systems have not been able to withstand the colonising process. This in turn has lead to inequalities oftreatment and opportunity. Maori inequalities are the result of:274

In its report, Taranaki Report: Kaupapa Tuatahi 1996 the Waitangi Tribunal understood the impact of these factors on Taranaki Maori development and wellbeing when it commented:275

Social and economic destabilisation of Taranaki Maori is a major compensation heading arising from the circumvention of the traditional leadership, its disregard for Maori rights of autonomy, its levying of war, its land acquisition, and land reform ...

The Tribunal also considered that in Taranaki "current social and economic performance may be a measure of past deprivation and poverty".276 A similar finding has been made in relation to the

273 M. Durie, "The Treaty of Waitangi: Perspectives on Social Policy" in H. Kawharu

(ed) Waitangi Maori and Pakeha Perspectives of the Treay of Waitangi (Oxford University Press, Auckland, 1989) 285.

274 See discussion in E. Douglas & J. Dyall Maori Under-Development — Submissions to the Employment Promotion Conference and the Maori Employment Conference Wellington, March 1985 (Wellington, Maori Economic Development Commission, 1985) 6-8.

275 Waitangi Tribunal Taranaki Report: Kaupapa Tuatahi — Wai 143 (Government Print Publications, Wellington, 1996) 313.

276 Waitangi Tribunal Taranaki Report: Kaupapa Tuatahi — Wai 143 (Government Print Publications, Wellington, 1996) 314.
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Muriwhenua Tribes. These tribes have suffered from land alienation and the undermining of tribal authority leading to physical deprivation, poverty, social dislocation, and loss of status.277

Therefore, the law has played an important role in undermining tribal control and authority, Maori self-government, law and Maori justice. It has made Maori subject to imposed European models of government and law. It has resulted in the subjugation of Maori women and their families and it has impacted on their overall well-being. It has also been the major instrument in denying Maori women access to justice. It has contributed to a situation where, based on the 1991 census, "approximately 40% of Maori families are sole parented, 84% by Maori women, the majority of whom have no school qualifications and are unemployed."278 Maori women are on the outside looking in. It is time to open the door.

277 Waitangi Tribunal Muriwhenua Land Report Wai 45 (Government Print Publications, Wellington, 1997) 404.

278 T. Rei "The Role of Maori Women in Treaty Negotiations and Settlements" in G. McClay (ed) Treaty Settlements: The Unfinished Business (Institute for Advanced Legal Studies, Wellington, 1995) 107.


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