New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 25 April 2015
LEGAL CHALLENGES AT THE INTERFACE OF MāORI CUSTOM AND STATE REGULATORY SYSTEMS: WāHI TAPU
He whenua, he wāhine, e ngaro ai te tangata –
Men will die for land and women.1
Most cultures and societies consider certain areas of land to be sacred
spaces whether it be cemeteries, battles sites, or places
significance such as the Wailing Wall and Dome of the Rock in the Holy Land,
Stonehenge in Britain, Maraeātea in
the Pacific, or Intihuatana at Macchu
Picchu in the Andes. But unlike these sites, Māori wāhi tapu (sacred
rarely a visible structure but rather a site or area within the
landscape with values so significant that restrictions are warranted.
To Māori, the tribal whenua (landscape) and specific wāhi tapu are
considered sacrosanct and as the aphorism above emphasises,
historically were willing to die for these sacred spaces (and for women of
course!). Indeed, the late Sir Hugh Kawharu
Māori land tenure was requiring a man to fight to preserve his
community’s estate. ... The whole land of the tribe belonged
to all of the
tribe and acknowledged themselves bound to join together the other sections in
defending all or part of the tribal
estate from encroachment of
Many battles have been fought over wāhi tapu. One of the first recorded
battles was in 1772 when French sailors committed the
hara (crime) of
desecrating a temporary wāhi tapu at Manawaora Bay in the Bay of Islands.
Some members of the local tribe had
drowned, and tapu status had been
temporarily applied to the Bay. Captain Marion du Fresne and his party had been
fishing in this
area despite warnings by Māori about the tapu. Local
1 Mitchell Takitimu (AH Reed Publishers, Wellington, 1944) at 227. Māori whakatauki (proverbs, aphorisms) can also be located in H Mead and N Grove Nga Pepeha a nga Tupuna (Victoria University Press, Wellington, 2001) at 134.
2 H Kawharu Māori Land Tenure: Studies of a Changing Institution
(Oxford University Press, Oxford, 1977) at 42.
executed du Fresne and 26 crew members for the desecration of the wāhi tapu.3
The heart of this instance and other wāhi tapu battles has been the actual or
proposed transgressions of their sacredness.
Hence, in earlier years blood was shed and men did die. Today, battles tend
to occur in the Environment and High Courts but are just
as passionate. Recent
decades have seen conflicts where wāhi tapu were threatened by new
highways, railroads, airports, prisons,
residential and commercial developments,
wind farms, power stations and waste dumps.
This chapter will discuss some of the numerous battles fought over the
preservation or development of these sacred places in Aotearoa-New
chapter first analyses the importance of a Māori world-view, general
Māori values, and tikanga Māori
(customary law) over the land to
establish a foundation for understanding Māori law and wāhi tapu in
disputes involving wāhi tapu will then be explored in
some detail. The chapter concludes with two pragmatic and relatively simple
suggestions when negotiating development over wāhi tapu: involvement of
competent Māori within the decision-making processes;
and referring to
well- audited sources such as the Te Mātāpunenga project of the
Te Mātāhauariki Research Institute at the University of
II. MāORI WORLD-VIEW
The negotiating processes that occur at the interface of two different legal
systems – in the present case general tikanga Māori
customary law and
British common law, and specific wāhi tapu disputes within State regulatory
systems within New Zealand –
are extremely complex. The protracted and
multifaceted disputes that erupt at this interface highlight the importance of
diversity and appropriately recognising the “other”
within the legal system. Indeed, the historic and contemporary disputes
wāhi tapu illustrate the importance of “other” world-views,
cultures, and “different” but effective
laws and institutions. The
chapter will now explore the relevance of a Māori world-view, Māori
values and Māori law.
3 See J Dunmore The French and the Maori (Heritage Press,
Waikanae, 1992). See also A Salmond Two Worlds: First Meetings Between Maori
and Europeans, 1642–1772 (Viking, Auckland, 1993) at 386.
Articulating a world-view as the world-view of a culture is
problematic given that all cultures manifest diversity. Still, a world-view
generally orientates the human
being and their community to the world so that it
is rendered understandable and their experience of it is explainable. Māori
Marsden’s economical definition of a culture’s world-view is
Cultures pattern perceptions of reality into conceptualisations of what they
perceive reality to be; of what is to be regarded as
actual, probable, possible
or impossible. These conceptualisations form what is termed the “world
view” of a culture.
The world view is the central systematisation of
conceptions of reality to which members of its culture assent and from which
their value system. The world view lies at the very heart of the culture,
touching, interacting with and strongly influencing every
aspect of the
Within any group in society there are likely to be a range of views, and
these may naturally change over time, space or with leadership
changes. Despite this difficulty, world-views are an important factor in a
diagnostic, as well as predictive, sense.
Looking forward, knowing the ground
rules allows one to establish those things that are amenable to change, and
those things that
are “not negotiable”. In terms of diagnosis of the
current Māori situation, a world-view helps to explain observed
The reconciliation of Māori world-views with the demands of a mainstream capitalist legal system is essentially a first step of polyphyletic jurisprudence. It should not be assumed, however, that there is a fundamental conflict between mainstream New Zealand law and Māori world-views and customary law. Rather, one should consider the extent to which the existing Māori customary laws and institutions are able to translate behaviour consistent with the uniquely Māori world-view into actions which also produce successful outcomes in the modern legal system. Clearly, the success of low Māori crimes rates within the legal system prior to and following the Treaty of Waitangi in
1840 and right up to post-Second World War suggests that, for the most part,
this translation can work well. It is also important
to ensure that where
failure occurs, the quality of the customary laws and institutions and the legal
system itself are examined
before underlying values are blamed. In the case of
Māori, current mainstream laws and institutions are often imposed from the
4 CT Royal The Woven Universe: Selected Writings of Rev. Māori Marsden (Estate of Rev.
Māori Marsden, 2003) at 56. See also C Royal The Purpose of
Education: Perspectives Arising from Mātauranga Māori: A Discussion
Paper (Report prepared for the Ministry of Education, Version 4, January
2007) at 38.
A. Māori Values
The Marsden definition above draws the link between world-view and values. If
you see the world in a certain way, this will determine
what you value in the
world (and what you don’t) and how you value it through one’s
behaviour which gives rise to the
well known triumvirate – world-view,
values and behaviour. This view holds that world-view acts as a
which values are developed and acted upon within the
behaviour of a culture. By understanding the world-view of a culture, we can
come to an understanding of its values and thereby its behaviour.
World-views, culture and social institutions provide a template through which
people perceive the opportunities and threats facing
them, and which translate
reactions to such opportunities and threats into action. There is little doubt
that some cultural and institutional
settings are more conducive to a
constructive assessment of the available options and to purposeful
Perhaps the one aspect of a distinctive Māori world-view that is most
obvious is the value of whānaungatanga (kinship) manifested
in the apparent
preference for collectivism. The language of Māori is unequivocally framed
in collective terms such as whānau
(family), hapū (sub-tribe) and iwi
(tribe). These structures are seen as the foundations upon which notions of
laws and institutions are built. Individuals are rarely
spoken of. Given this ideal, there are obvious questions around the effects
collectivist view in a seemingly individualistic world. The impact of the rise
in urban Māori as well as many Māori
overseas and (generally speaking)
their seeming lack of affiliation with traditional tribal structures further
but clearly needs to be taken into account. Table 1 below
illustrates potential sources of conflict and misunderstanding, arising
different world-views in relation to land.
Table 1: Māori and Colonial Attitudes to Land5
Proof of ownership
Deed of sale
By conquest, abandonment or
By sale or lease or Crown directive
Owners or tenants
Classes of land
Ancestral (take tupuna)Gifted (take
tuku)Conquered (take raupatu)
Freehold, leasehold, waste land/arable land
Agriculture, hunting, resource management
Agriculture, horticulture, mining settlements
Tribal identity and security for next generations
Market potential, employment
While the concepts in the table are obviously simplified, they do highlight
some of the more obvious world-view differences. In terms
attitudes, some researchers have reported that a Māori world-view, based
mainly on traditional values, is seen
as highly relevant in modern-day
Māori and New Zealand society and is fundamental for forming principles and
a guiding philosophy
for an Aotearoa-New Zealand polyphyletic jurisprudence. An
effective New Zealand legal system requires an understanding and alignment
the values, institutions and cultural norms prevalent within Māori society
too. Māori culture informs and legitimises
conceptions of self, of social
and political organisation, of how the world works and of how the individual and
work in the world.
On the other hand, an emphasis given to Māori customary laws and
institutions will vary in different settings because cultures
form and outcomes differently. There are significant tensions at play for
Māori between individual rights and
whānau (family), hapū (tribe)
and communal obligations; between the “objective” application of the
law, as against greater weight being given to traditional customary laws
and tikanga Māori in decisions, between an impartial
kaumātua making decisions. Nevertheless, it is important that Māori
customary laws and values are not undermined,
but recognised and accommodated in
a way that contributes to law and order.
5 M Durie Te Mana Te Kawanatanga: The Politics of Māori Self-Determination (Oxford
University Press, Auckland, 1998).
B. Values-based Law – Tikanga Māori
While Māori displayed a variety of cultural patterns, Māori as a
people lay claim to a set of abstract values and ways of
organising social life
that are distinctively Māori and refer to these ways as tikanga Māori.
Tikanga Māori is about
values, principles or norms which determine
appropriate conduct, the Māori way of doing things, and ways of doing and
held by Māori to be just and correct. History points to Māori
people and their culture being constantly open to evaluation
and questioning in
order to seek that which is tika – the right way. Maintaining tika or
tikanga is the means whereby values
for law and order, and social control, can
be identified. Tikanga are established by precedents and validated by more than
and vary in their scale, as rules of public through to private
application. Tikanga Māori is the traditional body of rules and
developed by Māori to govern themselves. The phrase “tikanga
Māori” is increasingly being used to mean
Māori culture and the
rules or guidelines for living generally accepted by Māori as tika (right,
However, tikanga is not a singular monolithic thing but rather a collection
of customary ways. Professor Hirini Mead’s recent
work is an authoritative
and accessible introduction to tikanga Māori, which provides understanding
of the correct Māori
ways of doing things, traditionally and today.6
To complicate things further, tikanga is sometimes described as Māori
law, kawa as ritual and procedural law particularly on
gathering places), and ture is described as church law, Western institutional
law and institutional Māori
land law. Ritenga (likeness, a repeated
pattern, hence custom), kaupapa (plan, scheme, proposal) and whakaaro (thought,
way of thinking)
are also important values and conceptual regulators of
Māori society. Exactly which of these meanings is intended can be
only by reference to the context of use, and even then, the other
meanings are present as over- and undertones. Indeed, as Lord Cooke
observed”7 “In law, context is everything.”
In summary, the principles of tikanga Māori provided the traditional
base for the Māori jural order and, for this chapter;
tikanga embodies core
values and principles that reflect doing what is right, correct or appropriate
in a law and order context.
It refers to the correct or proper courses of action
as seen by Māori.
The chapter will now explore the legal authorities and precedents for
acknowledging tikanga Māori within the legal system.
6 H Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, and Te
Whare Wānanga o Awanuiārangi, Whakatāne, 2003) at 234.
7 Quoting Lord Steyn McGuire v Hastings District Council  UKPC 43;  NZRMA
557 at 561.
iii. HISTORIC LEGAL AUTHORITY FOR RECOGNISING
MāORI CUSTOMARY LAWS AND INSTITUTIONS
A. Aboriginal Title
One of the legal principles for acknowledging and maintaining tikanga Māori customary laws and institutions within the legal system is the common law doctrine of Aboriginal title. English common law presumes and recognises some continuity of the local Aboriginal law subsequent to British annexation.8
Elements of pre-existing Aboriginal rights (dominium) were not extinguished
but were subject to the Crown’s plenary powers during
the assumption of
sovereignty.9 The elements of Aboriginal title maintained were those
that were not repugnant to common law and which did not interfere with or
the new sovereign (imperium).10 Specific rules of
Aboriginal title provide for the continuity of tribal property rights and are
common law rules establishing a type
of legal pluralism.11 The
continuity of the tribal title is defined by Māori customary laws, thereby
implicitly acknowledging that Māori had a
functional legal system; and that
rangatira (leaders) retained a certain amount of legally recognised de jure
power perhaps even as late as the Second World War. Māori certainly
retained territorial title rights to land and water,12 including the
marine and coastal area,13 and non-territorial rights to, inter alia,
customary fisheries14 based on customary law.
B. Treaty of Waitangi 1840
The Treaty of Waitangi 1840 is the other authority which affirmed Aboriginal title. It recognised Māori customary law in Article II: “... te tino rangatiratanga
... o ratou taonga katoa” [emphasis added]. The English text
defines this phrase as the “full exclusive and undisturbed possession of
other properties”15 [emphasis added]. In 1860,
Governor Gore Brown acknowledged taonga as “all other
possessions”.16 On the other hand, the Waitangi
8 The Case of Tanistry (1608) Davies 28 (KB); Memorandum  EngR 1; (1722) 2 P Wms 75 (PC);
Campbell v Hall  EngR 5; (1774) 1 Cowp 204 (KB).
1989) at 40.
10 P McHugh “The Aboriginal Rights of the New Zealand Māori at Common Law”
(Unpublished PhD Thesis, Sydney Sussex College, Cambridge, 1987) at 150.
11 Ibid., at 51. R Boast “Treaty Rights or Aboriginal Rights” (1990) NZLJ at 32, 33.
12 Te Rūnanganui o Te Ika Whenua Inc. v Attorney-General  NZCA 218;  2 NZLR 20.
13 Attorney-General v Ngati Apa  3 NZLR 577.
14 Te Weehi v Regional Fisheries Officer  NZHC 149;  1 NZLR 680 (HC).
15 Kawharu, above n 3, at 317.
16 Maori Messenger (10 July and 26 July 1860).
recognised that taonga katoa includes “all valued customs and possessions”.17
The Tribunal subsequently noted that taonga in a metaphorical sense
covers a variety of possibilities rather than itemised specifics,18
or simply objects of tangible value.19
McHugh points out that Governor Hobson was instructed to not propose or
assent to any Ordinance that would result in Māori being
favourably than Europeans, inferring that the promise of te tino rangatiratanga
in Article II included the continued
viability of customary law and the chiefs
thought that they were to retain their customary authority among their own
Under these juristic definitions and applying an ejusdem generis
approach, taonga katoa in the Treaty should be construed to include
Māori customary laws. Māori custom was treasured by
the ancestors, and
was an intangible object of immense value. It still is for many Māori
today. Jackson confirmed that the undertaking
to preserve “other
properties” in Article II included “all things highly prized as
their own customs and culture”21 [emphasis added].
William Colenso also described an incident prior to signing the Treaty where
Governor Hobson agreed to protect Māori
custom in the alleged fourth
Article of the Treaty (albeit in that case an oral
In summary, the common law doctrine of Aboriginal title and the partnership
provisions within the Treaty of Waitangi strengthen the
axiom that Māori
customary law was not only to be officially recognised within the legal system,
but to be preserved and protected
by the Imperial, Colonial and subsequent
post-Colonial Governments of New Zealand. The Treaty thus sought to encourage
of Māori customary and English common law.
17 Waitangi Tribunal Report Findings of the Waitangi Tribunal Relating to Te Reo Māori (Wai
11, Wellington, 29 April 1986) para 4.2.4; 4.2.8, 4.2.3, at 20.
18 Waitangi Tribunal Report Findings and Recommendations of the Waitangi Tribunal ... in
Relation to Fishing Grounds in the Waitara District (Te Atiawa Report) (Wai 6, Wellington,
1983) para 10.2(a).
19 Ibid., para 4.2.4; and 4.2.8.
20 P McHugh The Māori Magna Carta (Oxford University Press, Auckland, 1991) at 287.
21 M Jackson He Whaipaanga Hou – A New Perspective – Māori and the Criminal Justice
System (Department of Justice, Wellington, 1988) at 49.
22 W Colenso The Authentic and Genuine History of the Signing of the
Treaty of Waitangi (Capper Press, Reprint, 1890) at 31. The alleged fourth
Article orally stated: “E mea ana te Kawana ko nga whakapono katoa o
Ingarani, o nga Weteriana, o Roma, me te ritenga Maori hoki e tiakina ngatahitia
– The Governor says that the several faiths (beliefs) of England,
of the Wesleyans, of Rome, and also Māori custom shall
alike be protected
by him.” See C Orange The Treaty of Waitangi (Allen & Unwin and
Port Nicholson Press, Wellington, 1987) at 53.
C. Tikanga Māori Customary Law Precedent
With the above legal backdrop underpinning the settlement of Aotearoa-New
Zealand, in 1840 Governor Hobson pragmatically issued orders
police magistrate of Kororareka, that “a rigid application of British law
to the Māori should be avoided
in favour of some sort of
compromise”.23 Official instructions were forwarded from London
directing the Governor to respect and uphold tikanga Māori within the legal
system. In 1842, Lord Stanley suggested that certain Māori institutions
such as tapu (restriction laws) be incorporated into
Stanley also directed that legislation be framed in some measure to meet
Māori practices including punishment for desecrating
Perhaps the most important yet often overlooked constitutional provision that
acknowledged Māori customary laws and institutions
was s 71 of the New
Zealand Constitution Act 1852, which stated:
71. 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:
It shall be lawful for her Majesty, by any Letters Patent to be issued under
the Great Seal of the United Kingdom, from time to time
to make provision for
the purposes aforesaid, any repugnancy of any such native laws, customs, or
usages to the law of England, or
to any law, statute, or usage in force in New
Zealand, or in any part thereof, in anywise notwithstanding.
The section provided for the establishment of native districts where tikanga
Māori would prevail between Māori inter se; however, s 71 was
23 Cited in P Adams Fatal Necessity: British Intervention in New Zealand 1830–1847 (Oxford
University Press, Auckland, 1977) at 211, 286.
24 Lord Stanley, Secretary of State for the Colonies, Memorandum (23 August 1842).
25 Lord Stanley, Minute (23 August 1842, Colonial Office Records 209/14) at 202.
26 See R Joseph The Government of Themselves: Case Law, Policy and
Section 71 of the New Zealand Constitution Act 1852 (Te
Mātāhauariki Research Institute, University of Waikato Press,
JUDICIAL DENIAL OF MāORI CUSTOM
Following the Constitution Act 1852, the judiciary diminished its legal
obligations to recognise Māori customary usage and law
title was extinguished. In Re The Lundon and Whitaker Claims Act
1871,27 the Court of Appeal reasserted that “the Crown was
bound, both by the common law of England and by its solemn engagements, to
full recognition of native proprietary right”.28 The Court
stated “whatever the extent of that right by established native custom
appears to be, the Crown is bound to respect
it”.29 However, in
Wi Parata v Bishop of Wellington,30 the tide turned when
Prendergast CJ held that Māori custom and usage did not exist. He concluded
Had any body or custom, capable of being understood and administered by the
Courts of a civilized country, been known to exist, the
British Government would
surely have provided for its recognition, since nothing could exceed the anxiety
displayed to infringe no
just right of the aborigines. ...
Whatever may be meant by the phrase “the persons or property, whatever
real or personal, of the Maori people,” the next
“and touching the title,” can only signify that the Court is enabled
and required to entertain and determine
questions of native title. The [Native
Rights Act 1865] speaks further on of the “Ancient Custom and Usage of the
as if some such body of customary law did in reality exist.
But a phrase in a statute cannot call what is non-existent into being.
As we have shown, the proceedings of the British Government and the
legislation of the colony have at all times been practically based
contrary supposition, that no such body of law existed; and herein have been in
entire accordance with good sense and indubitable
If therefore, the contention of the plaintiff in the present case be correct,
the Native Land Acts, guided only by “The Ancient
Custom and Usage of the
Maori people, so far as the same can be ascertained,” is constituted the
sole and unappealable judge
of the validity of every title in the
Fortunately we are not bound to affirm so startling a conclusion. The Crown,
not being named in the statute, is clearly not bound
by it; as the Act, if it
bound the Crown, would deprive it of a prerogative right, that namely of
conclusively determining when native
title has been duly
27 (1871) 2 NZ (CA) 41.
29 Re The Lundon and Whitaker Claims Act 1871 (1871) 2 NZ (CA) 41, 49.
30 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 79.
31 Ibid., at 77–78 and 79, 80.
The legal ramifications of Prendergast CJ’s mantra were that no
Māori custom existed because Maori were uncivilised barbarians
system of law; and any recognition in statute of Māori custom could be
disregarded because such custom does not exist!
To add salt to the wounds,
Prendergast CJ also deemed the Treaty of Waitangi a “simple nullity”
for the same reason –
Māori lacked the legal capacity to enter into
an international treaty.
Prendergast CJ reinforced this finding in Rira Peti v Ngaraihi Te
Paku32 when he held that native districts, pursuant to s 10 of
the New Zealand Government Act 1846,33 were never appointed because
Māori were British subjects governed by the laws of the land and not by
The Law Commission commented on a number of factors that combined to ensure
that the settlers’ legal system was geared towards
the eclipse and assumed
extinguishment of tikanga Māori customary law which
a) The belief that English institutions and culture were innately superior,
and it was in the best interests of Maori to assimilate;
b) The desire to create an ideal English society in New Zealand;
c) The introduction of English laws and internalizing colonial values;
d) The settlers desire for land resulting in land alienation from
Māori Aboriginal title rights and Treaty of Waitangi rights and many of
their tikanga values, customary laws and institutions
were marginalised through
judicial and political conservatism and lay legally dormant following the Wi
Parata decision until the Treaty of Waitangi Act 1975 and the establishment
of the Waitangi Tribunal – just under 100 years! The Waitangi
the catalyst that resurrected tikanga Māori customary laws and institutions
and the “principles” of
the Treaty of Waitangi significantly within
the New Zealand legal system.
32 (1889) 7 NZLR 235.
33 The New Zealand Government Act 1846 was the forerunner to the New Zealand Constitution Act 1852. Governor Grey managed to have the former Act suspended and subsequently overridden by the latter. Section 10 in the former statute was the equivalent to s 71 native districts in the latter statute.
34 Rira Peti v Ngaraihi Te Paku (1889) 7 NZLR 235, 238–239.
35 New Zealand Law Commission Māori Custom and Values in New
Zealand Law (NZLC SP9, Wellington, 2001) at 22 para 97.
STATE PROVISION FOR WāHI TAPU
Despite the major societal transformation of New Zealand society and
Māori communities, the changes to tikanga Māori rarely
changes to the “fundamental value system”.36 Tikanga
Māori was and still is regularly adhered to by many Māori, whether
consciously or unconsciously, in the everyday
management of the landscape,
community and family affairs.
New Zealand’s positivist legal system, however, tends to ignore tikanga
Māori and the Treaty of Waitangi unless they have
been included in
legislation or in the common law. On the other hand, there are now a number of
statutes that recognise tikanga Māori,
including the Treaty of Waitangi Act
1975,37 the Resource Management Act 1991,38 the
Māori Fisheries Act 2004,39 and the Marine and Coastal Area
(Takutai Moana) Act 2011. Then there is an array of statutes that refer to the
Treaty of Waitangi,
which by implication includes tikanga
Although the courts apply Māori custom where statutes so allow, the
Judges have also been prepared recently to apply Māori
custom even without
a statutory reference where custom is a relevant fact or the Treaty of Waitangi
is a relevant consideration.41 In addition, Māori customary law
can provide the basis for title in land,42 forms the basis for
fishing rights,43 and can assist in the definition of a statutory
concept.44 It is to the inclusion of Māori values and the
contemporary use of tikanga Māori with specific reference to wāhi tapu
and the litigation battles that have emerged that this article will now
36 T Bennion (March 2001) Maori LR, available online <www.bennion.co.nz/mlr/2001/mar. html> (last accessed January 2011).
37 Treaty of Waitangi Act 1975, Schedule 1.
38 Resource Management Act 1991, ss 2, 14, 39, 42, 146, 199 and 269.
39 Māori Fisheries Act 2004, ss 4, 44, 88, 101, and Schedule 7.
40 For example, the Treaty of Waitangi Act 1975, ss 1 and 2; Resource Management Act 1991, ss 8, 45 and 141B; Te Ture Whenua Māori Act 1993, ss 7, 18 and 339; the Māori Fisheries Act 2004, ss 4, 5, 19, 15, 31, 32, 34, 45, and 188–211; the Waikato-Tainui Raupatu Claims Settlement Act 1995, ss 6, 8, 10, 14, 26, 30, 38 and Schedule 1; the Ngāi Tahu Claims Settlement Act 1998, ss 10, 34, 35, 48, 103, 274, 304 and 305; and Te Rūnanga o Ngāti Awa Act 2005, ss 3 and 11.
41 For example, Te Weehi v Regional Fisheries Officer  NZHC 149;  1 NZLR 680 (HC).
42 Attorney-General v Ngāti Apa  NZCA 117;  3 NZLR 643 (CA).
43 Te Weehi v Regional Fisheries Officer  NZHC 149;  1 NZLR 680 (HC).
44 For example, the meaning of kaitiakitanga (stewardship) under s 7, Resource Management
A. Waitangi Tribunal Stance on Māori Values
The contemporary importance of Māori cultural values was examined by the
Waitangi Tribunal in its 1985 Manukau Report.45 The Tribunal
considered the issue of taking water from the Waikato River at a point some
miles from the sea and discharging it into
the Manukau Harbour, rather than
allowing the water to reach the sea via the Waikato River mouth, some distance
south of the Manukau
Harbour. The objection was entirely a tikanga
“metaphysical” one, that the mauri (life force)46 of the
Waikato should not be mixed by human intervention in this way with the mauri of
the Manukau Harbour and “dead”
or “cooked” water should
not be discharged to living water that supplies seafood.
The Tribunal first pointed out that “the values of a society, its
metaphysical or spiritual beliefs and customary preferences
applied in the assessment of proposals without a thought as to their
origin”.47 The Tribunal continued:48
In our multicultural society the values of minorities must sometimes give way
to those of the predominant culture, but in New Zealand,
the Treaty of Waitangi
gives Māori values an equal place with British values and a priority when
the Māori interest in
their taonga is adversely affected. The recognition
of Māori values should not have to depend upon a particular convenience
when the meat industry found it convenient to introduce Halal killing practices
to accommodate Islamic religious values.
The “current” values of a community:49
... are not so much to be judged as respected. We can try to change them but
we cannot deny them for as Pascal said of the Christian
heart has its reasons, reason knows not of.” That view alone may validate
a community’s stance.
Later in the report the Tribunal noted that Māori values were not
opposed to development. Rather, there was a difference of emphasis
45 Waitangi Tribunal The Manukau Report (Wai 8, Wellington, 1985) at 77.
46 Mauri is the life principle or life force of animate and inanimate things such as people, places, forests, water bodies, land and the general environment. See R Benton, A Frame and P Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Te Mātāhauariki Research Institute, University of Waikato, Hamilton, CD Version, 2007) and Mead, above, n 7.
47 Benton, Frame and Meredith, above n 47, at 78.
48 Ibid. The halal reference recalls the period when New Zealand abattoirs killed meat in accordance with Muslim religious practices for export to Muslim countries.
49 Ibid, at 124.
50 Ibid, at 123–124.
Māori society ... has tempered what might have been a fundamental
religious bar with a basic pragmatism, enabling modifications
to the environment
after appropriate incantations or precautionary steps. ... We consider that
Māori values ought to be provided
for in planning legislation. We do not
think that they should predominate over other values but we do think they should
into account and given proper consideration when Māori interests
are particularly affected. And if Māori interests are
affected then there might at least be a search for a practical alternative if
there is one, or a reasonable compromise.
B. Contemporary Landscape Battles – Wāhi Tapu
‘Wāhi’ refers to a place or locality.51
‘Tapu’ is a condition affecting persons, places and things,
and is described as a prohibition but essentially its function
is that of a
protective device. Waddy defined tapu as:52
[A] “Code of Law” far above and transcending all human laws,
forming a Table of Māori Commandments, owing its authority
superstition and partly to fear, but based primarily upon political motives and
common sense. Early Māori was ruled
by the law of tapu.
Tapu also acted as a means of social control over people and the landscape.
Best noted in this regard:53
The system of tapu was a series of prohibitions, and its influence was very
far reaching – so much so that it entered into all
activities of native
life. The laws of tapu affected all crises of life – birth, marriage,
sickness, death, burial, exhumation,
all industries; and no person in the
community was exempt from its stringent rules. To disregard those rules meant
disaster to the
individual; but the punishment meted out to the transgressor was
not inflicted by his fellow- tribesman – it was imposed by
Such a system of prohibitions was intended to safeguard the tapu of each
person in relation to the community, the atua (gods) and
51 H Williams Dictionary of the Māori Language (Government Printing Office, Wellington,
1985) at 474.
52 P Waddy “Tapu: A Code of Law: Criticism of Sir James Frazer’s Views” in P Waddy “Early
Law and Customs of the Maoris” (MA Thesis, University of Victoria, Wellington, 1927).
53 E Best The Māori as He Was: A Brief Account of Māori Life in Pre-European Days
(Government Printer, Wellington, 1974) at 89.
54 M Shirres Te Tangata: The Human Person (Accent Publications, Auckland, 1997). See also M Shirres Tapu: Te Mana o Nga Atua: The Mana of the Spiritual Powers. A Māori Theological Understanding of Tapu (Te Rūnanga o te Hāhi Katorika ki Aotearoa, Ponsonby,
Given the permanence of the land, links to the landscape for Māori are
links to the past and future. Implicit in the relationship
to the landscape is
the responsibility of present generations as stewards over the land given by
past generations in trust for those
of the future as the aphorism states,
Nōku te whenua o ōku tūpuna – Mine is the land of my
ancestors. Māori tribal landscapes are very important anchors for the
The contemporary use of Māori words and tikanga concepts such as
wāhi tapu in a statute or other official texts provides
fertile ground for
litigation. Those provisions of the Resource Management Act 1991 (RMA), in
particular the Māori trilogy key
sections 6(e), 7(a) and 8,55
were enacted to enable an appropriate balancing exercise to occur between
development and the protection of Māori customary rights
landscape.56 As recognised by the courts, the Māori trilogy and
... place the Court directly at the interface between the concepts of British
common law (which has its genesis in Roman law) and
the concepts of Māori
customary law which is founded on tikanga Māori. The Treaty promised the
protection of Māori
customs and cultural values. The guarantee of
Rangatiratanga [sic] in Article 2 was a promise to protect the right of
to possess and control that which is theirs:
“in accordance with their customs and having regard to their own
Resource consent applicants and local authorities have generally avoided a
“direct approach” to confronting Māori
under the RMA until
recent times. There are a number of reasons for this change including:
(1) a growing sophistication in the utilisation of the Māori provisions; (2) the various RMA “successes” achieved by Māori; and
(3) the increasing utilisation of Māori academics/cultural advisers by
resource consent applicants and others.
55 Refer to Appendix I to view ss 6(e), 7(a) and 8.
56 See P Majurey “Environmental Issues” in New Zealand Law Society Treaty of Waitangi
(New Zealand Law Society Seminar, Hamilton, August 2002) at 31–63.
57 Land Air and Water Association v Waikato Regional Council
(Unreported, Judge Whiting, Environment Court, Auckland, A110/01, 23 October
2001 (Hereinafter Hampton Downs)) at 104. There, the Court considered a
proposal to establish a large engineered land disposal facility at Hampton Downs
Waikato. The proposal received considerable opposition from the local
community including tangata whenua (local people).
From this direct approach, there is a growing judicial testing of the
Māori spiritual and cultural paradigm including values
and tikanga over the
landscape. The result has been a significant increase in the resources and time
local authorities have had to
apply to Māori issues. This has led in many
cases to resource management outcomes quite different from those which occurred
prior to the enactment of the RMA when Māori cultural and spiritual values
could be safely ignored or sidelined. However, while
Māori values may now
have entered the system, there is evidence that the system may not yet have the
tools, or have developed
a sufficiently informed approach, to dealing
appropriately with those values.
A classic example is the contemporary New Zealand debate over wāhi tapu.
Section 6(e) RMA provides that it is a matter of national
recognise and provide for “the relationship of Māori and their
culture and traditions with their ancestral
lands, water, sites, waahi tapu
[sic], and other taonga [important places]”. Section 6(f) protects
historic heritage from inappropriate
subdivision, use and development; and s
6(g) protects recognised customary activities.
Historic heritage is defined in s 2(b)(iii), RMA, as inter alia: sites of
significance to Māori, including wāhi tapu. Section
42(1)(a) RMA adds
that a local authority may, on its own motion or on application of any party to
any proceedings or class of proceedings,
make an order where it is satisfied
that the order is necessary “to avoid serious offence to tikanga
Māori or to avoid
the disclosure of the location of wāhi
In addition, the Ture Whenua Māori Act 1993 interprets wāhi tapu as
a “place of special significance according to
Māori”.59 The Historic Places Act 1993 noted that a
wāhi tapu is “a place sacred to Māori in the traditional,
ritual, or mythological sense”60 while a
wāhi tapu area means “an area of land that contains one or more
wāhi tapu”.61 Wāhi tapu are referred to in the
Biosecurity Act 1993,62 Hazardous Substances and New Organisms Act
1996,63 Local Government Act 2002,64 and the Marine and
Coastal Area (Takutai Moana) Act 201165 (see Appendix II of this
58 Resource Management Act 1991, s 42(1)(a).
59 Te Ture Whenua Māori Act 1993, ss 4 and 338(1)(b).
60 Historic Places Act 1993, s 2.
62 Sections 57, 60, 72 and 76.
63 Section 6(d).
64 Section 77(1)(c), and Schedule 11.
65 Sections 78 and 79.
a comprehensive list of current statutes that include wāhi tapu). The
frequent inclusion of wāhi tapu in legislation provides
fertile ground for
battling out the concept in court.
In a number of cases, Māori opponents of development have argued that
they will affect wāhi tapu covering several hectares
of land. The
Environment Court appears to have taken two general approaches. The first is a
three-stage enquiry for claims of wāhi
tapu and relies heavily on a close
examination of the etymology of “wāhi
The first is to determine, as best as we are able in the English language,
the meaning of the concept. The second is to assess the
evidence to determine
whether it probatively establishes its existence and relevance in the context of
the facts of a particular
case. If so, the third is to determine how it is to be
recognised and provided for. When, as in the case here, it is alleged that
site is wāhi tapu, it is necessary: first to determine the meaning of
wāhi tapu: second to determine whether the evidence probatively
establishes the existence of wāhi tapu, and third, if it does, how is it
be provided for.
In addressing these steps the Environment Court had regard to the following
(1) dictionary definitions;
(2) Reports of the Waitangi Tribunal;
(3) definitions of tikanga Māori values in relevant RMA instruments;
(4) other Acts forming part of the statutory scheme.67
Assertions of wāhi tapu have not only been met with evidence from
Māori dictionaries but also Māori studies experts
who claim that the
term wāhi tapu applies to sites which are quite limited in area and
associated with some religious or ceremonial
event. For example, in the
Winstone Aggregates Ltd v Regional Council68 decision, the
Court recorded evidence of wāhi tapu by Mr Buddy Mikaere, an alleged expert
on Māori studies:69
Mr Mikaere stated: “the point being that wāhi tapu are very small specified
Mr Rima Herbet, the manager of the Ngāti Naho Co-operative Society
Limited, gave evidence. He defined wāhi tapu:
66 Winstone Aggregates Ltd v Regional Council (Unreported, Whiting J, Environment Court, Auckland, A80/62, 28 April 2002) at 62. [Hereinafter Winstone Aggregates].
67 For example, the Historic Places Act 1993.
69 Ibid, at 69.
... as physical features or phenomena, either on land or water, which have
spiritual, traditional, historical and cultural significance
to our people.
Waahi tapu as conceived by Māori may originate from pre-contact history or
from post-European history through
to the present day. The waahi tapu identified
up until recent times by us included cultivation areas and Māori earthworks
burial areas which are all of long-standing importance to the Māori
people of our area.
In the Land Air and Water Association v Waikato Regional
Council70 decision, the Environment Court considered similar
Māori academic evidence on the nature of wāhi tapu which was
by the Court:71
In traditional Māori society a waahi tapu was a specific place –
usually very small – within the tribal rohe or boundary.
They were, by
definition, strictly set apart from daily life because the tapu or spiritual
restriction contained within such places
posed dangers to all. Nobody went there
or used such places for any purposes. ... The definition I [Mr Mikaere] have
lies behind the concept of waahi tapu and identifies them as places
of high spiritual and religious danger. Because of the nature
of their original
use, old pa sites, fortifications, earthworks, cultivations and such like cannot
be waahi tapu because they are
associated with secular rather than religious
This approach therefore finds that wāhi tapu refers essentially only to
urupā (burial grounds) and ceremonial or spiritual
sites, and that the term
cannot usually cover places associated with purely secular rather than religious
activities such as old
pā sites, fortifications, earthworks and
particularly cultivations.72 This approach applies standard
evidential tests.73 In the Hampton Downs decision, the Court
tested Māori academic evidence by a non-lawyer participant asking questions
between a Mr Tukiri and Mr Mikaere:74
Q: Would it be fair comment to say that your expertise comes more from tauiwi
(foreigner) than from your own people?
A: Which particular area are we talking about?
Q: I am talking about your qualifications from university and qualifications
on past mahi (occupation) that you’ve done.
70 Above n 58 (Hampton Downs).
71 Ibid., at 111. This evidence sought, in part, to rebut the evidence of a Ngāti Naho kaumātua.
72 Above, n 58 (Hampton Downs) and above n 67 (Winstone Aggregates).
73 Above n 67 (Winstone Aggregates); Countdown Properties (Northland) Limited v Dunedin City Council  NZHC 67;  NZRMA 145 (H.C); Te Kupenga o Ngāti Hako v Hauraki District Council (Unreported, Bollard J, Environment Court, Auckland, A 10/01, 23 January 2001).
74 Above, n 58 (Hampton Downs), at 112–113.
A: The qualifications I hold are no different to qualifications any other
Māori people hold issued by [the] same education institution.
don’t see why I should be singled out because I am lucky enough to get
there. My qualifications in that particular area,
if we’re talking about
purely in [the] Māori world I’ve outlined my experience and how I
obtained that experience
in answer to questions put yesterday. I see no reasons
to change those responses ...
Q: [Is it] fair to assume [that the] position [you] currently occupied here
on behalf of [the] applicant and in the tauiwi [foreigner]
world would give
evidence today and not as your Māori side?
A: [There are] several parts to that question, first is that this is a New
Zealand rather than tauiwi institution, we are here before
because we support the processes of this country, when I am in this world I
appear as part of this world so to speak.
I cannot entirely put aside my
Māori heritage of which I am extraordinarily proud. I believe in being
present here, [I] can
contribute by bringing some balance to the proceedings by
appellants and s 274 interveners. I believe that in a number of instances
views are incorrect, they are incorrect in terms of factual accuracy, incorrect
in interpretation of traditional tikanga, they
do demonstrate evolution and
continued evolution of Māori conceptual thinking; somebody needs to bridge
the gap and I see that
as my role.
The Court ultimately accepted Mr Mikaere’s evidence that the site was
not a wāhi tapu and therefore it did not have any
significance. This narrow definition does not sit well with a number of High
Court decisions in which there is
general acceptance that large areas, sometimes
associated with secular activities, are wāhi tapu.75 In the
Takamore Trustees v Kapiti Coast District Council76 decision,
the High Court found that the general wāhi tapu area was sufficiently
described. The inability to specifically point
to areas within the wider area as
site-specific locations of wāhi tapu was not critical.
In the Hampton Downs and Winstone Aggregates decisions,77
the Environment Court moreover stated that it can rely upon Waitangi
Tribunal Reports when it referred to the Te Roroa
For Māori, wāhi tapu like taonga is an “umbrella term”
that applies not only to urupā (burial grounds)
but other places that are
set apart both permanently and temporarily. These include places associated in
some way with birth or death,
with chiefly persons and with traditional canoe
landing and building
75 In Minhinnick v Watercare Services Ltd  1 NZLR 6, 3 [hereafter Minhinnick], the stone fields were 29 hectares in size. Many of the activities associated with the area were of a secular nature such as cultivations and kainga (homes).
76  3 NZLR 496. [Hereinafter Takamore Trustees].
77 Above n 67 (Winstone Aggregates).
78 Waitangi Tribunal, Te Roroa Report (Wai 38, Waitangi Tribunal,
Wellington, 1992) at 227.
places. Temporary tapu are usually imposed and removed on hunting and fishing
grounds for cultivations to conserve and protect the
resource. They also include
places associated with particular tūpuna and events associated with them,
set in order by whakapapa.
Interestingly, the High Court has not seen fit to define what is or is not a
wāhi tapu probably because findings of fact have
already been made in the
Environment Court or there is agreement by all parties concerned that the
subject site is a wāhi tapu.
However, it is possible to glean some themes
from the wāhi tapu litigation in the High Court.
As mentioned above, wāhi tapu are not limited to small discreet places. The wāhi tapu area in Takamore Trustees v Kapiti Coast District Council79 was
25 acres,80 29 hectares in Minhinnick v Watercare Services Ltd,81 and 56 acres in Tawhai v Whakatane District Council and Te Rūnanga o Ngāti Awa.82
Furthermore, wāhi tapu sites appear to not be limited solely to activities of a religious, sacred or highly tapu nature. The Matukuturua stone fields included areas of garden, archaeological features and cultivations.83 In Ngāti Maru v Thames Coromandel District Council and Kruithof,84 the wāhi tapu site contained a pā site as well as tapu areas. In some High Court decisions, there was reference to a general wāhi tapu area as the Ngāti Maru decision.85
However, in both the Takamore Trustees and Ngāti Maru
decisions, the Courts seem to contemplate that within a general wāhi
tapu area, there could be specific, more localised wāhi
In addition, in the Ngāti Maru decision, there was reference
to a sacred waterway and adjacent area where sacred sites were
The failure to register wāhi tapu status on relevant district plans is
not critical to finding a wāhi tapu as in TV 3 Network Services Ltd v
Waikato District Council88 and Ngāti Maru
decisions.89 In cases in which the challenge as to whether a
wāhi tapu exists or not, the Environment Court has jurisdiction
79 Above n 77 (Takamore Trustees).
80 (Unreported, 27 July 2003, Chambers J, HC Rotorua, CIV-2003-463-109). [Hereinafter
81 Above, n 76 (Minhinnick).
82 Above, n 81 (Tawhai).
83 Above, n. 76 (Minhinnick) at 63.
84 (Unreported, 27 August 2004, Laurenson J, HC Hamilton, CIV-2004-485-330) [Hereinafter
86 Above, n 77 (Takamore Trustees); above, n 85 (Ngāti Maru).
88  1 NZLR 360 [Hereinafter TV3].
89 Above, n 85 (Ngāti Maru).
make a finding of fact.90 The failure to precisely locate the wāhi tapu site in question and failure to point to archaeological remains is not critical when claiming wāhi tapu status,91 and it is an error of law for the Environment Court to reject as mere assertion the oral evidence of kaumātua (elders), as to the presence of koiwi (bones) and taonga (treasures) without giving a rational basis for that rejection. There is a clear requirement for the Environment Court to explain why it rejects such evidence when it can only be based on oral history. To accept only documented and precise evidence on such matters would mean that there would be little evidence in support of s 6(e) matters.92
In all the cases in which wāhi tapu status was accepted, Māori
witnesses were able to point to ancestral occupation and
oral tradition of the
spiritual importance of the site in question.
The Environment Court has on a number of occasions had to consider the issue
of what constitutes a wāhi tapu. In Winstone Aggregates, the Court
suggested a methodology which involves determining the meaning of wāhi
tapu, determining whether the evidence probatively
establishes the existence of
wāhi tapu; and if the evidence establishes the presence of wāhi tapu,
and discusses how it
is to be provided for. In the Winstone and Heta v
Bay of Plenty Regional Council93 decisions, the Court stated that
wāhi tapu must be objectively established, not asserted, by reference to
material of a probative
value which satisfies the Court on the balance of
probabilities. General evidence of wāhi tapu over a wide and undefined area
was not probative of a claim that wāhi tapu existed on a specific
In the Takamore Trustees case (before the Environment Court) and the
Hampton Downs decisions, the Court was critical of the evidence led by
objectors on the basis that it was hearsay, general in nature, and lacked
specificity by way of oral tradition or historical foundation. However, the High
Court’s decision in Takamore Trustees means these comments will be
treated with caution. Justice Young stated that unless kaumātua (elders)
evidence of an oral nature
was exposed as incredible or they were unreliable
witnesses, or there was other credible and reliable evidence contradicting what
they had to say, the Court cannot reject their
90 Above, n 81 (Tawhai).
91 Above, n 89 (TV3) and above, n 77 (Takamore Trustees).
93 Heta v Bay of Plenty Regional Council (Unreported, A93/2000, Judges Whiting, Dart and
94 Above, n 67 (Winstone Aggregates).
95 Te Kupenga o Ngāti Hako v Hauraki District Council and Waikato
Regional Council (Unreported, A010/2001, Judges Ballard, Hackett and
McIntyre), above, n 58 (Hampton Downs) and above, n 67 (Winstone
In some cases, development has occurred despite claims of wāhi tapu
status; for example, Heta v Bay of Plenty Regional Council96
and Beadle and Wihongi v Minister of Corrections and Northland Regional
Council.97 But another successful wāhi tapu battle occurred
in the 2007 decision of Maungaharuru- Tangitu Society Inc and Ors v Hastings
DC and Unison Networks Ltd.98 The Environment Court overturned a
resource consent by the Hastings District Council to Unison Networks for Stage 2
of a project to
construct and operate a wind farm at Te Waka on the Maungaharuru
Range in Hawke’s Bay. The Court concluded that Māori
values were more
important than issues of climate change and the use of renewable sources of
energy. The Court commented on the relationship
of Māori with the whenua
The area of Te Waka-Maungaharuru has all of the features mentioned in s.
6(e) – land, water, sites, waahi tapu and other taonga. It was
impossible not to absorb some of the depth of emotion expressed
in the evidence
about the attachment of the people to this area. It not only defines one of the
boundaries of their tribal rohe or
districts. It also helps to define them as
individuals and as tribal and family groups. The relationship they have with it,
no longer owning it, must be, we think, just the kind of relationship
... of Māori, their culture and traditions ... that drafters
of the section
had in mind, and which the legislation requires to be recognised and provided
for as being of national importance.
An unusual and protracted case occurred in Hemi v Waikato District Council
and Ritchie100 where Hemi, a wealthy Māori with ancestral
links to Whaingaroa (Raglan), proposed to build a house in Whaingaroa with much
Māori support, but was vehemently opposed by a prominent local
non-Māori family on the grounds that part of the land was
tapu.101 The Environment Court had to consider disputed evidence
about whether or not a taniwha (ancestral monster) resided along the coastline
beneath the land, making it wāhi tapu and therefore inappropriate for the
development of a dwelling place. Judge Harland found
that there were no
urupā or archaeological findings on the site which was indicative that the
site was not wāhi tapu. However,
even if it was, a tapu-lifting ceremony
had been conducted by kaumātua prior to 1965 so that the land was not
any more.102 Consequently, the consent was granted
and the Hemi whānau could finally develop the coastal property.
96 (Unreported, A93/2000, Environment Court, Judges Whiting, Dart and Gapes).
97 (Unreported, A74/2002, 8 April 2002).
98 Maungaharuru-Tangitu Society Inc and Ors v Hastings DC and Unison Networks Ltd
(Unreported, Environment Court, Wellington, W24/2007, 13 April 2007, Thompson CJ).
99 Ibid., at 81.
100 Hemi v Waikato District Council and Ritchie  NZEnvC 216.
102 Ibid., at para 166.
In summary, it appears there is a divergence of approach in the Environment
Court and High Court as to the elements which constitute
a wāhi tapu. There
appears to be a difference of approach in discussing the activities associated
with the site, the precise
location of wāhi tapu sites, the size and scale
of wāhi tapu, the use of outside experts and the emphasis to be placed
oral traditional kaumātua (elder) evidence. Such contradictory approaches
heighten the tension in these landscape conflicts.
Protracted conflict over
wāhi tapu is inevitable.
Predictably, wāhi tapu battles103 continue to erupt around
New Zealand in places such as the wāhi tapu Puketutu Island in the middle
of the Manukau Harbour where
the Manukau City Council wants to discharge 4.4
million cubic metres of treated sewage over the next 35 years;104
protecting wāhi tapu along beautiful beaches in Whangara, Tolaga Bay
and the Far North;105 in opposition to a Lake Taupo tourist
development on Acacia Bay;106 the construction of the Sandhills
Expressway to revamp State Highway 1 near Waikanae;107 the protection
of wāhi tapu waterways such as the Te Waikoropupu Springs in Golden
Bay108 and the Waikoko Spring in Hawke’s Bay;109 and
Ngāti Kahu’s successful opposition to investment banker Paul
Kelly’s development plans to build homes overlooking
Karikari Beach on
Doubtless Bay which is on top of a wāhi tapu cave where Ngāti Kahu say
the bones of their ancestors were
103 There are numerous contemporary battles over wāhi tapu. See, for example, “Waitara beach toilet plan runs into tapu” The Daily News (13 June 2003); “Sacred site ruling hits developers” The New Zealand Herald (29 April 2004); “Government bestows ‘national importance’ on Māori superstition ‘ancestral landscapes’” The Independent (9 April 2003); “Landowners seek to reclaim property rights from wāhi tapu” Stuff (26 February 2003); “The non-sense of wāhi tapu” The Nelson Mail (11 December 2002); “Property rights extinguished by Māori tapu” The Independent (13 November 2002); “Hundreds sign petition against wāhi tapu” New Zealand Herald (3 December 2002); and “Clark defends wāhi tapu process”, Television New Zealand (19 November 2002). For more recent examples, see the references below.
104 “Proposed ‘poo tax’ for island dumping”, New Zealand Herald (18 May 2009). See also
“Untouched world lies on our doorstep” Manukau Courier (5 January 2010).
105 “Idyllic area hiding its sacred treasures” New Zealand Herald (22 January 2009); “Beach fears played down” The Dominion Post (18 January 2009); and “Courts should decide beachfront land row – judge” New Zealand Herald (20 January 2009).
106 “House owner refusing to budge” The Dominion Post (6 October 2009).
107 “Iwi has grave fears over Waikanae expressway” The Dominion Post (17 December 2009).
108 “DoC brings in plan to protect famous spring” New Zealand Herald (6 April 2009).
109 “Manmade pond listed as sacred” The Dominion Post (18 August 2009).
110 P de Graaf “Iwi defeats US billionaire in holiday homes row” The Northern Advocate (4
The litigation over the Ngawha prison site in the 2002 decision of Beadle
& Wihongi v Minister of Corrections & Northland Regional
Council111 indicates that these challenges of trying to define
wāhi tapu through litigation are not going away. It suggests that, if
the incidence of these value arguments is likely to increase. That
case involved substantial expert Māori witnesses both supporting
opposing the development and discussing the effects of the proposal on the
ancient pathways of a taniwha (monster).112
It can also be noted that the Resource Management Act 1991 requires decision
makers to recognise the need to protect historic heritage
development, which includes “sites of significance to Māori,
including wāhi tapu”.113 This is an important issue, not
just because of the requirements of the RMA 1991, but also because the
principles of natural justice
require that people are given a fair hearing. Can
that occur if the decision-making process (including decision makers) has
information about the Māori values and evidence
Given such complex issues when attempting to acknowledge tikanga Māori
in legislation generally and wāhi tapu specifically,
what are possible
appropriate options to move towards a better understanding and treatment of
these issues? There is the suggestion
from the Judicial Committee of the Privy
Council that the pool of decision makers at the Environment Court (and High
ought to include people able to deal appropriately with Māori
It might be useful to have available for cases raising Māori issues a
reserve pool of alternate Judges and Deputy Commissioners.
At all events their
Lordships express the hope that a substantial Māori membership will prove
practicable if the case does reach
the Environment Court.
Against this we may contrast the Court of Appeal approach in Watercare
Services Ltd v Minhinnick,115 where that Court was asked to
support the notion that when considering whether the piping of sewage over
wāhi tapu was “offensive,
or objectionable to such an extent that it
has or is likely to have an adverse effect on the environment”. The
test was what the ordinary Māori person would find
objectionable. The Court of Appeal rejected that view, finding that the relevant
test was that of the “ordinary
111 Beadle & Wihongi v Minister of Corrections & Northland Regional Council (A74/02. 8
113 Resource Management Act 1991, s 2(1): “historic heritage”: (a)(iii) and (b)(iii).
114 McGuire v Hastings District Council  UKPC 43;  NZRMA 557, 1 November 2001, Lord Cooke, para 28.
115  NZRMA 113.
person, representative of the community at large” – presumably no
matter how ignorant that community might be of Māori
values, or, more
importantly, its own hidden assumptions and prejudices.
VI. testIng the eVIdence – Te
Resorting to dictionaries and documentary sources to prove or disprove the
existence, extent and scope of tikanga Māori in a
particular area tends
towards the academic and away from the determinative spiritual and cultural
context of Māori. As Metge
To come to grips with Māori custom law, it is necessary to recognise
that Māori concepts hardly ever correspond exactly
with those Western
concepts which they appear, on the surface, to resemble. While there is a degree
of overlap, there are usually
divergences as well. Even if the denotation
– the direct reference – is substantially the same, the connotations
Hence those qualified to articulate the values and practices inherent in
tikanga Māori are usually Māori, especially competent
But as illustrated above in this chapter, what happens when kaumātua
slightly or even diametrically disagree
with what constitutes
“authentic” tikanga and wāhi tapu or the details and scope of a
group’s tikanga and
The work of Te Mātāhauariki Institute at the University of Waikato
may be of some assistance here.117 One of the key projects of Te
Mātāhauariki Institute was the assembling of a collection of
references to the concepts and
institutions of Māori customary law to
explore ways in which the legal system of Aotearoa-New Zealand could better
best of the values and principles of both major component cultures.
The first Director of the Institute, Judge Michael Brown, in
the Institute’s Advisory Panel, accordingly initiated Te
Mātāpunenga,118 which is an attempt to traverse the
existing historical materials with a view to bringing together such references
to customary concepts
and institutions as appeared to come from an influential
or authoritative source and/or to exhibit explanatory insight.
The Mātāhauariki researchers started with a list of terms denoting
legal and normative concepts and institutions found to
be in use in historical
and contemporary Māori discourse. These were selected with the assistance
of kaumātua. The researchers
searched a wide range of records for entries
which have been listed in chronological order under each title. Each entry
116 J Metge “Commentary on Judge Durie’s Custom Law” (Unpublished Paper for the Law
Commission, 1996) at 3.
117 See the Te Mātāhauariki Research Institute website <www.lianz.waikato.ac.nz>.
118 Benton, Frame and Meredith Te Mātāpunenga, above n
of a sourced statement or explanation relevant to a particular title together
with an explanatory preface intended to supply a context
for the statement or
explanation. The purpose of the context is to enable the reader to understand
the circumstances in which the
statement or explanation arose, and to judge its
credibility and authority.
The researchers did not set out to determine what is or is not “true
custom”, or authentic tikanga Māori but rather
to record what has at
various times and in various circumstances been claimed to be custom. This
extract from the Te Mātāpunenga section on wāhi tapu
exemplifies the approach taken, with the preamble followed by seven entries
selected from sources at 30–40
year intervals from among the 26 included
in the 2007 draft.119
Wāhi Tapu A place subject to serious and long-term ritual
restrictions on access or use, for example the site of a battle or massacre, or
area of particular historical, ceremonial or cultural importance. Wāhi
tapu include but are by no means confined to urupā
the phrase is often used interchangeably with the more specific term. The word
wāhi has a complicated
history, derived ultimately from Proto-Malayo
Polynesian *bad‘i “wedge”; perhaps, fittingly, several derived
(“to split lengthwise”, “a part or portion”,
and “place”) converged in Māori through slightly
routes; the connotation of “place” is shared with cognate terms in
Tuamotuan, Hawaiian and Marquesan. The derivation
of tapu is discussed in the
title for that concept.
[#WAH 02] In a letter to Rev. Joshua Mann of 14 July 1817, Thomas Kendall, a
scholar and keen student of Māori language and customs,
and one of three
agents of the Church Missionary Society established at the Bay of Islands by
Rev. Samuel Marsden, offered some advice
to would-be settlers:
“In selecting a portion of land for a settlement, it would be advisable
to take care that it be as clear as possible of what
the natives call the wahhe
tabboo (wāhi tapu). Wherever a person has breathed his last, or his bones
have been laid for a time,
there is always a piece of timber set up, if there is
no tree growing to perpetuate his memory. The wahhe tabboo is not suffered
molested, and is held sacred both by friends and strangers. Amongst the natives,
the least disrespect paid to their sacred
relics or religious ceremonies and
customs is considered a sufficient ground for a war by enemies and for a public
debate by friends.”
Elder, J. Marsden’s Lieutenants,
(Dunedin, A. H. Reed. 1934) p. 140.
[#WAH 06] In a Journal entry dated 5 June 1845 the missionary Thomas Chapman
recorded that a road had been placed under a tapu for
five months as the result
of an axe being stolen from a burial ground near that road. Korokai,
119 Used with permission of the Editorial Board.
a prominent chief, was accompanied by Chapman to seek the lifting of the tapu
as he required the road to drag two large canoes out
to sea. Korokai’s
local influence was evident:
“Korokai replied ... there were many hundreds who required the use of this road and his people in particular just now ... take away the ‘tapu’
... This ended the regular part of the debate – and it was intimated
that the five months would be lowered to five weeks, and
this seemed tolerably
satisfactory.” Chapman, Thomas 1792–1876 Journal, (AT L Ref:
[#WAH 11] Tongariro, like many other prominent landmarks, has always been regarded as a ‘maunga tapu’. An editorial has described Tongariro as “Tena kei tawhiti e tu mai ana Tongariro, te maunga tapu, e kore e takahia noatia e te waewae ware, te nohoanga o te tuatara, te takotaranga o te puehu o nga tupuna rangatira kua mate atu.” [In the distance is seen Tongariro, the sacred mountain too sacred for common feet to tread its Tuatara-guarded solitudes, those last resting places of the dust of chieftain]. (Te Wananga, (Vol. 1, No. 5,
16 January 1878). Hence during the 19th century, local Māori often disapproved
of Europeans travelling to Tongariro:
“A ko te Māori e riri ana ki nga Pakeha haere ki Tongariro, he tohe hoki na te Pakeha kia kite i te toitoi o Tongariro. Te take i riri ai te Māori (ara na te Māori aua kii nei) he tapu no taua wahi, a e takahi ana te Pakeha i o te Māori mea tapu. Ki te Pakeha, he whenua tonu te whenua kahore he tapu. Otiia kahore te Pakeha e puta i te Māori ki taua wahi. The Māori are angry with Europeans going to Tongariro, the European argue that they want to see the toitoi of Tongariro. The Māori believe Europeans are desecrating the sacred things of the Māori. The Europeans believe that land is just land, and not sacred. The reason the Māori are angry (that is, according to the Māori themselves), is that that place is sacred and the Europeans are transgressing the things that are sacred to the Māori. To the European land is land, it is not sacred. But the Māori will not allow the European to go to that place.
‘Taupo’, Te Wananga, (30 March 1878, Vol 5, No. 13) p.
[#WAH 19] In the annual report of the Rotorua Māori Land Council to
Parliament by Captain Mair, ‘Nga Kaunihera Maori’
attention was drawn to the annoyance and offence of local Māori with
Europeans desecrating their ancient burial
places. A Rotorua meeting called on
the Government to protect such sites:
“Tenei ano tetahi take e akiakina ana, ara, kia hanga be tikanga kaha
hei tiaki i nga urupa me nga wahi tapu o te iwi Māori,
kei tukinotia, kei
takatakahia noatia e te Pakeha. He nui rawa te riri o te iwi mo tenei mahi
nanakia a te Pakeha; a, te kaati mai
i kona, tahuri rawa ratau ki te panui i nga
whaka- hua o a ratau takaro (ki nga tapu o te Māori).
Kua tapiritia e au te whakaahua o etahi o aua Pakeha taurekareka i roto i
tetahi ana tanumanga tupapaku i Te Rotoiti, e takahi ana
i te wahi i takoto ai
nga toa piripono o te Arawa, i mate mo te Kuini i te pakanga o mua ake nei. Ka
hapa i konei ko te Ture hei
whiu i tenei tu hara. Tera ke noa atu te hamama
mehemea i tupono he Māori nana i tukino tetahi urupa Pakeha, be motini kaha
i oti i te hai i Rotorua, e inoi ana ki te Kawanata- nga kia tiakina o ratau
([Translation by Te Mātāhauariki] “Another reason they are
urging that this should happen is so that they can develop
a strict protocol to
protect Māori graveyards and sacred sites, in case they are abused and
trampled on by Pakeha. The people
are very angry with Pakeha for this reckless
behaviour. The conversation ended there, and they went on to read aloud the
of their careless behaviour (toward things sacred to the Maori). I have
attached the photograph of some of those Pakeha scoundrels
inside a burial plot,
in Rotoiti, desecrating the resting place of close allies of Te Arawa, who died
for the Queen in the war. The
law is inadequate to punish this type of crime. On
the other hand there would be quite an outcry if it was thought that a
had violated a Pakeha grave; a strong motion was passed at the
meeting in Rotorua, requesting the Government to protect their dead.)”
Te Puke ki Hikurangi, (Vol 5, Issue 14, 30 September 1903) p. 2.
[The entry goes on to quote the sympathetic comment of “A European
newspaper” on this aspect of Mair’s report, which
“... A thoughtless European, accustomed to regard his own cemeteries with every mark of respect and reverence, might readily look upon a Maori burial ground with very different feelings. The place where a white man deposits his dead has all the symbols of a place of mourning
, but a Maori burial place is merely a cave full of bones—till one
remembers that it is the native fashion, and is just as sacred
to him as the
tomb filled cemetery of the Pakeha.” A-G, (28/2/03).
[#WAH 21] As part of the 1940 Centennial Celebrations marking 100 years since
the signing of the Treaty of Waitangi, several Māori
taua’ or war canoes were constructed. The building process and the site
were considered tapu. Some European observers
failed to realise this as was
reported in a local newspaper article. Some persons permitted themselves to be
on the canoe to the dismay of Māori who considered
such an act as desecration.
“The canoe which the Maoris are building at Kerikeri is tapu. All
Pakeha should remember this fact, especially females to whom
it is doubly
tapu... It seems a pity that the Maoris, in leaving the Kerikeri canoe lying
about in such an open and accessible spot,
did not think to indicate its
untouchable character. A notice: ‘This canoe is tapu,
please do not touch’ would have the desired effect. In the meantime, it
is suggested that those who have violated the tapu should
donations to the funds which it is proposed to organise so as to assist the
Maoris in their entirely commendable work.”
‘The Place is
Tapu’, The Northern Advocate, (November 17, 1938).
[#WAH 23] Te Taou historian Colleen M. Sheffield related the historical
relationship of this Ngāti Whatua hapu with the sandhills
through to the northern stretches at Rangatira. She observed that by the time
the first Pakeha came, Te Taou knew every
aspect of living in the sandhills, and
generations of their forbears were laid to rest in hidden burial places among
the dunes. She
“In the forest and on the sand we work in harmony with men of other
races who still respect our customs and wishes. The old
wahi tapu are all fenced
off today and left unplanted, and the seaward face of Oneonenui has been set
aside as a tapu area because
of the hundred Waikato who were once slain there.
The future of Te Taou is ably guarded by the men of the State Forest
Te Ao Hou, (No. 40, September 1962) p. 46.
[#WAH 26] The issue of wāhi tapu has also frequently come before the
Environment Court, particularly as a result of section 6(e).
Where it has been
alleged that a site is wāhi tapu, the Court has had to grapple with the
meaning of wāhi tapu and how
to provide for sites determined to be
wāhi tapu. In Winstone Aggregates the Court recorded evidence of
wāhi tapu from Mr Rima Herbet, the manager of the Ngāti Naho
Co-operative Society Limited,
who defined wāhi tapu as
“... physical features or phenomena, either on land or water, which
have spiritual, traditional, historical and cultural significance
to our people.
Waahi tapu as conceived by Māori may originate from pre- contact history or
from post-European history through
to the present day. The waahi tapu identified
up until recent times by us included cultivation areas and Māori earthworks
burial areas which are all of long-standing importance to the Māori
people of our area.” Winstone Aggregates Ltd v Franklin District
Council (AO 80/02, 17 April 2002).
In the same case, a Māori environmental consultant and former Waitangi
Tribunal Director, Buddy Mikaere, giving evidence on behalf
Aggregates, argued that wāhi tapu were very small specified places,
rather than general areas.
Vii. some formAtiVe concLusions
Cultures view the world differently, and valuing that difference is an important step towards understanding, acknowledging and even celebrating a Māori world-view. Unfortunately, this has not always been the case in Aotearoa and cultural misunderstanding and ethnocentrism have been the causes of much conflict throughout history from the bloody execution of the French sailors in
1772 to the contemporary legal battles over wāhi tapu today. But the
Courts are moving to alleviate potential and real conflict
over wāhi tapu
by giving weight to Māori interpretations of these sacred sites.
Consequently, wāhi tapu are accepted
by the judiciary as more than just
burial grounds in that there may be a variety of causes why tapu status may be
tapu, moreover, do not necessarily stand separate from places
used for everyday life, and may sometimes be associated with secular
The common law doctrine of Aboriginal title and the Treaty of Waitangi 1840
promised the protection of Māori cultural values.
Through the introduction
of the concept of wāhi tapu into law, and the interpretations made by the
courts, there is now formal
acknowledgement that non-European concepts of
sacredness are important, and an acceptance of tikanga Māori relating to
tapu and other Māori concepts. These changes over the past two
decades have meant that tikanga concepts such as wāhi tapu
have now become
widely acknowledged, even if sometimes begrudgingly.
Furthermore, wāhi tapu are not always sacrosanct – tapu status can
be uplifted, and in some cases the relevant Māori
community may come to an
agreement as to the grounds under which wāhi tapu can be disturbed. There
is scope for such a course
of action both in terms of tikanga Māori (tapu
lifting) and also legal precedent – thus rendering the land open for
development. In other circumstances, it may be appropriate to
preserve the status quo. But Māori should be making these decisions,
However, while tikanga Māori values, customs and institutions have now
re- entered the New Zealand legal system, there is evidence
that the system may
not yet have the tools or have developed a sufficiently informed approach to
dealing appropriately with those
values and customs. This article has
highlighted some of the complexities that the Environment and High Courts are
facing when attempting
to incorporate and define tikanga in legislation through
litigation specifically around wāhi tapu. The article highlighted two
possible options to move towards a better understanding and treatment of these
challenges in the legal system and society generally
Māori in the decision-making processes and referring to the more
extensive use of authoritative and well-audited tikanga Māori
works such as the Te Mātāpunenga project of the Te
Mātāhauariki Research Institute at the University of Waikato.
The Te Mātāpunenga project will prove useful to the
judiciary and wider public particularly, inter alia, where challenges are
located at this interface
between tikanga Māori custom and State regulatory
systems. Given that Te Mātāpunenga includes well-audited
historical and contemporary research, primary and secondary and written and oral
sources, it will assist with
contributing to tikanga Māori debates and,
more importantly, for reflecting on the best customary concepts, institutions
values of both of New Zealand’s major founding cultures –
Māori and Pākehā.
There still appears to be a potential for the values of the dominant society
to be “regularly applied in the assessment of proposals
without a thought
as to their origin”.120 On the other hand, perhaps sufficient
tools now exist that can be applied to address that situation and the inclusion
again of tikanga
Māori values, customs and institutions within contemporary
New Zealand society.
Finally, this article suggests that we are well into experiencing the re-
emergence of a hybrid legal system that recognises both
the English legal
tradition as it has developed in Aotearoa and elements of tikanga Māori.
The New Zealand legal system should
continue to evolve in order to accommodate
the best values and legal concepts from both Māori and Pākehā
and communities. Māori should be open to the option of appropriate
cultural change, as should Pākehā and other non-Māori
Zealanders, so that we can together create an effective legal system with
sufficient flexibility and robustness to meet the needs
of the citizens of
Aotearoa-New Zealand in and beyond the 21st century.
Kāua e hokona te whenua, he mea oti tonu atu; nōku hoki te
whenua; he manene hoki koutou, he noho noa ki ahau. – The
land shall not
be sold forever: for the land is mine; for ye are strangers and sojourners with
me. – Leviticus 25:23.
120 Waitangi Tribunal, The Manukau Report (Wai 8, Wellington, 1985)
resource management act 1991, sectIons 6(e), 7(a) and 8
6 Matters of national importance
In achieving the purpose of this Act, all persons exercising functions and
powers under it, in relation to managing the use, development,
and protection of
natural and physical resources, shall recognise and provide for the following
matters of national importance:
(e) The relationship of Māori and their culture and traditions with their ancestral
lands, water, sites, waahi tapu, and other taonga.
7 Other matters
In achieving the purpose of this Act, all persons exercising functions and
powers under it, in relation to managing the use, development,
and protection of
natural and physical resources, shall have particular regard to—
8 Treaty of Waitangi
In achieving the purpose of this Act, all persons exercising functions and
powers under it, in relation to managing the use, development,
and protection of
natural and physical resources, shall take into account the principles of the
Treaty of Waitangi (Te Tiriti o Waitangi).
current legIslatIon WIth references to māorI WāhI tapu
Biosecurity Act 1993, s 57.
Biosecurity Amendment Act 1997, s 35. Building Act 2004, s 39.
Building Amendment Act 2009, s 14.
Climate Change Response Act 2002, s 37. Crown Forest Assets Act 1989, s 18. Crown Minerals Act 1991, ss 17, 51. Education Act 1989, s 214.
Fisheries Act 1996, s 121.
Hazardous Substances and New Organisms Act 1996, s 6. Historic Places Act 1993, ss 22, 25, 28, 32, 32A, 33, 103. Historic Places Amendment Act 2006, ss 8, 10, 13, 14, 15. Local Government Act 2002, s 77.
Local Government Official Information and Meetings Act 1987, s 7. Marine and Coastal Area (Takutai Moana) Act 2011, ss 78, 79. Overseas Investment Act 2005, s 6.
Reserves and Other Lands Disposal Act 1995, s 3. Resource Management Act 1991, ss 2, 6(1). Resource Management Amendment Act 2003, s 3.
Resource Management Amendment Act (No 2) 2011, Schedule 2: Chapter 6:
“Amendments to Waikato Regional Coastal Plan”
State-Owned Enterprises Act 1986, s 27D.
Summit Road (Canterbury) Protection Act 2001, s 5. Te Ture Whenua Maori Act 1993, Preamble.
Te Ture Whenua Maori Amendment Act 2002, s 56.
Legislation Affecting Specific Iwi or Māori Groups
Affiliate Te Arawa Iwi and Hapu Claims Settlement Act 2008, Preamble, s
Ngaa Rauru Kiitahi Claims Settlement Act 2005, Schedule 10. Ngāi Tahu
Claims Settlement Act 1998, s 196.
Ngāti Apa (North Island) Claims Settlement Act 2010, s 5. Ngāti Awa Claims Settlement Act 2005, Preamble.
Ngāti Mutunga Claims Settlement Act 2006, Preamble.
Ngāti Rarua-Atiawa Iwi Trust Empowering Act 1993, Schedule 3. Ngāti Ruanui Claims Settlement Act 2003, s 7.
Ngāti Tama Claims Settlement Act 2003, Preamble.
Ngāti Tūrangitukua Claims Settlement Act 1999, Preamble.
Ngāti Tūwharetoa (Bay of Plenty) Claims Settlement Act 2005, Preamble. Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act
2010, Schedule 1.
Pouakani Claims Settlement Act 2000, Schedule 8. Te Roroa Claims Settlement Act 2008, Preamble.
Te Uri o Hau Claims Settlement Act 2002, Preamble, s 32.
Te Whānau-a-Taupara Trust Empowering Act 2003, Schedule 2.
Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, Schedule
2: Vision and Strategy for the Waikato River.
Waitutu Block Settlement Act 1997, s 8.