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Te Aho, Linda --- "Tikanga Maori, historical context and the interface with Pakeha law in Aotearoa/New Zealand" [2007] NZYbkNZJur 4; (2007) 10 Yearbook of New Zealand Jurisprudence 10

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)


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.

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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.

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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

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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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