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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 24 April 2015
Tikanga Maˉ ori, Historical Context and the Interface with Paˉ kehaˉ Law in Aotearoa/New Zealand
Linda Te Aho*
Tangata whenua systems of law and government existed before colonization by
the British. ‘Tikanga Māori’ and ‘Māori
customary
law’ are terms (not necessarily interchangeable) that embody the values,
standards, principles, or norms that indigenous
Māori have developed to
govern themselves. In this edition there are a number of articles that assert
tikanga Māori as
the first law of Aotearoa/New Zealand.
Although not recognized as such by the colonizers’ judicial
institutions initially, the courts have, for better or worse, incorporated
tikanga into the common law of New Zealand. The instances of its use, however,
are limited because of the predominantly codified
nature of New Zealand law, and
the ideal of parliamentary supremacy. The role of tikanga Māori is most
evident in the Māori
Land Court in the interpretation and application of
legislation relating to Māori land.1 This is not surprising
given that many Māori share the view that we are bound to the land by
whakapapa or genealogy.
The land is a source of identity for Māori. Being direct descendants of
Papatūānuku, Māori see themselves as not
only ‘of the
land’ but ‘as the land’. The living generations act as the
guardians of the land, like their
tīpuna before them. Their uri benefit
from that guardianship, because the land holds the links to their parents,
grandparents
and tīpuna, and the land is the link to future
generations.2
Increasingly, general statutes such as the Resource Management Act 1991
incorporate Māori principles and values, or make explicit
reference to the
principles of the Treaty of Waitangi. The Resource Management Act explicitly
provides for recognition of wāhi
tapu, sites of sacred significance to
Māori, in
* Linda Te Aho is of Ngāti Korokī Kahukura descent and is Associate Dean Māori and Senior Lecturer in Law at the University of Waikato Law School. An abridged version of this paper is scheduled to be published in the Oxford Legal Encyclopedia in 2009. Aotearoa is a widely used Māori name for New Zealand. For more extensive discussions of tikanga, see Cleve Barlow Tikanga Whakaaro Key Concepts in Māori Culture (1996) and Hirini Moko Mead Tikanga Māori Living by Māori Values (2003). Also helpful is Māori Custom and Values in New Zealand Law (Law Commission Study Paper 9, 2001).
1 Te Ture Whenua Māori (The Māori Land Act) 1993.
2 Ministry of Justice, He Hinātore ki te Ao Māori A Glimpse into the Māori World (2001)
44.
2007 Tikanga Mäori, Historical Context
11
the context of decision making in planning and environmental law. Tikanga
Māori is also of current practical relevance in relation
to the exercise of
discretions, as in sentencing or family protection claims.
As will become more apparent in the articles by Ani Mikaere and Moana Jackson
later in this edition, appropriate conduct in terms
of tikanga varies from tribe
to tribe and is dynamic rather than fixed. Yet, many Māori would agree on a
common set of core
values that determine appropriate conduct, in particular (1)
whakapapa and whanaungatanga – the importance of genealogy, of
collectivity and connectivity, connections to land, to creation and to each
other; (2) mana – authority over who might exercise
certain rights; (3)
utu – reciprocity; (4) tapu and noa – sacredness and secularity; and
( ) kaitiakitanga – stewardship.
The continuing customary practise of rāhui, a prohibition on the use of
a resource, provides an example of tikanga. A rāhui
might be invoked to
prohibit entry into areas affected by the sacredness of death or to ensure the
sustainability of food resources.
Breach of a rāhui could result in the
offender’s family being subjected to some form of compensation, and in
some cases
(more so in the past), the offender suffering illness or even death
by natural or supernatural means.
Aotearoa was colonized when legal positivism dominated European legal
thinking and custom was not considered law. Yet many Māori
see law as an
emanation of culture. Moana Jackson is critical of ‘monolegalism’;
the inability to see beyond one’s
own culturally differentiated legal
system:
All societies share a similar desire to control the behaviour of their
members and to ensure the transmission of important ideas and
norms. Each system
of law has been shaped by the history and values of its particular culture and
adapted over time to maintain a
sense of order. Most have been derived from a
concept of divine authority which has been exercised through chosen human agents
who
are deemed to exercise it impartially, or it has been incorporated into the
belief systems whereby divine sanction is accepted as
direct and personal. It
provides the myths and reality of necessary control by which societies maintain
order and harmony; a set
of myths which exhibit a not surprising universality in
their general assumptions about what is acceptable or unacceptable
behaviour.3
3 Moana Jackson The Māori and the Criminal Justice System, A New
Perspective: He Whaipaanga Hou, Part II Department of Justice (1988) 3 ,
cited in Richard Boast, Andrew Erueti, Doug McPhail, Norman Smith Māori
Land Law (2nd ed, 2004) 23.
12 Yearbook of New Zealand Jurisprudence
Vol 10
Early New Zealand cases grappled with the notion of Māori customary law.
In R v Symonds,4 a case involving a claim of a prior valid
title to land, the Court asserted that native title to land was to be recognised
by the
courts. Chief Justice Prendergast rejected this assertion in the infamous
case of Wi Parata v Bishop of Wellington5 in which he held
that there was no customary law of the Māori which the courts of law could
recognise. In that case, a Ngāti
Toa chief in the Porirua District had
entered into a verbal agreement with the Bishop of New Zealand that tribal lands
be given as
an endowment for a school at Whitireia. In 1850 a Crown Grant was
recorded for establishment of a school on certain trusts. No school
was ever
established. In 1877, Ngāti Toa sought declarations that the land be
reserved for the use and benefit of Ngāti
Toa tribe, that the Bishop of
Wellington be trustee, and that the Crown Grant be declared void and ultra
vires. Prendergast CJ found
that Māori had no ‘settled system of
law’ and that an Act referring to the ancient custom of Māori
‘cannot
call what is non-existent into being’. Even if it did exist,
the Crown Grant impliedly extinguishes native title.
In 1901, the Privy Council took a different view in Nireaha Tamaki v Baker.6
A New Zealand court had initially applied Wi Parata, but the Privy
Council held that courts could recognize Māori customary law, particularly
as relevant legislation clearly assumed
the existence of land tenure under
custom and usage. The Court had the jurisdiction to at least decide whether the
alleged title
existed and, if so, whether or not that title had been
extinguished by cession.
The Court in Public Trustee v Loasby7 followed this
decision and set out a three-part test to determine when Māori customary
law would be invoked at common law: (1)
Whether custom exists is a matter of
fact and therefore must be proved by appropriately qualified experts, except
where by frequent
proof the matter has become ‘notorious’ to the
court so that judicial notice can be taken of it; (2) if it does exist,
is it
contrary to statute?, and (3) if not is it reasonable in the judge’s
subjective view? The second limb of this test is
somewhat problematic for
Māori seeking to invoke custom, as a great deal of New Zealand law is
codified and therefore overrules
the common law. The Crimes Act 1961 for example
precludes customary defences as it is a complete code.
4 Eng P.P. 1847, NZPC Cases 387.
5 [1877] NZJurRp 183; (1877) 3 NZ Jur NS 72.
6 [1901] UKLawRpAC 18; [1901] AC 561.
7 [1908] NZGazLawRp 71; (1908) 27 NZLR 801.
2007 Tikanga Mäori, Historical Context
13
Māori customary law therefore retains a central place in the common law
of New Zealand and can be invoked subject to the requirements
of the Loasby
test. While in a codified legal system such as New Zealand’s this
limits the application of Māori customary law it does
provide for more
input than it would under a Wi Parata analysis.
Many Māori have sought to rely on the common law doctrine of aboriginal
rights in the courts to enforce customary rights, including
customary title. For
an activity to be a customary right under this doctrine there must be an element
of practice, custom, or tradition
integral to the distinctive culture of the
tribal group claiming the right. The claimant must demonstrate that the
practice, tradition,
or custom existed before contact, and that it is
continuing. It is then for the Crown to reconcile the existence of the rights
with
Crown sovereignty.
In Te Runanganui o Te Ika Whenua Inc Soc v Attorney General,8
the key issue was the existence of aboriginal rights in the context of a
proposed transfer of two dams to energy companies. The claimants
alleged that
the transfers would prejudice their property rights in the rivers. The Court
held that certain inherent aboriginal rights
did exist, deriving their
legitimacy from communal Māori law, which could not be extinguished except
with the ‘free consent’
of the Māori. Such rights predate the
assertion of Crown sovereignty in 1840 and could only be extinguished in favour
of the
Crown and by strict compliance with the relevant statutes.
Neither aboriginal rights nor customary rights have received formal constitutional recognition or protection in any entrenched statute, although many Māori would argue that such rights are affirmed, at least, by two significant documents: the Declaration of Independence 183 , declaring all sovereign power and authority within the territories of the united tribes of New Zealand to reside entirely and exclusively in the hereditary chiefs and heads of tribes; and Te Tiriti o Waitangi, the Treaty of Waitangi, signed in
1840 between many Māori tribes and the Crown, marking the beginning of
the colonization of Aotearoa by British settlers. The
Treaty of Waitangi is
widely considered to be the basis of legitimate government in New Zealand and
has been recently interpreted
by the courts to create a
‘partnership’ between Māori and the Crown, so that compliance
with its terms has a certain
priority with the government.
The Treaty of Waitangi was written in both English and Māori, and in
English it ‘guaranteed’ to Māori full,
exclusive and
undisturbed possession of lands, fisheries, and all things of significant value.
In the Māori version, Te Tiriti
o
14 Yearbook of New Zealand Jurisprudence
Vol 10
Waitangi speaks of Māori people having te tino rangatiratanga or
sovereign authority in respect of lands, fisheries, and all
things of
significant value, a different and wider concept than the English version, which
is confined to a property right rather
than recognition of the governmental
authority of Māori. In the eyes of many Māori, the Crown has failed to
adhere to either
version.
An illustration of this view comes from the Māori response in May 2004
to proposed legislation that would remove the jurisdiction
of New Zealand courts
to explore the existence of Māori customary rights. Litigation had been
initiated by Māori groups
to determine whether they had and continue to
have customary rights over the foreshore and seabed. The Māori Land Court
assumed
that such Māori customary rights had existed and went on to
consider whether any such customary rights had been extinguished.
The Court held
that these Māori customary rights had not been affected by British
sovereignty in 1840. Territorial sea and fishing
legislation vesting the bed of
the territorial sea (within an exclusion zone) gave the Crown no more than a
radical title. Māori
customary rights would still be a burden on that title
and confiscatory legislation must ‘clearly and unequivocally’
deal
with extinguishment and compensation must be paid where there is no Māori
consent to extinguishment.
This case progressed through New Zealand’s legal system to the New
Zealand Court of Appeal. In Ngati Apa v Attorney General,9 in
finding that the Māori Land Court had jurisdiction to determine whether the
foreshore and seabed are Māori Customary
Land, the Court of Appeal
confirmed that customary title did continue after the British Crown’s
assertion of sovereignty in
1840 and was not extinguished by any general or
specific legislation. The Foreshore and Seabed Act 2004 was enacted in the wake
of
the Court of Appeal decision despite widespread opposition. It explicitly
extinguishes Māori customary rights in relation to
the foreshore and
seabed.
Ultimately then, while tikanga Māori does occupy a place in the common law of New Zealand and can be invoked subject to certain requirements, in this codified legal system, its application is limited.
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