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Suszko, Abby --- "Te Matapunenga: a compendium of references to the concepts and institutions of Maori Customary Law" [2013] OtaLawRw 11; (2013) 12 Otago LR 207

Last Updated: 23 April 2015

Te Mātāpunenga: A Compendium of References to the

Concepts and Institutions of Māori Customary Law

(by Richard Benton, Alex Frame & Paul Meredith, Victoria

University Press, 2013)

Te Mātāpunenga is a book that every New Zealand lawyer and legal scholar should have in their reference library. Te Mātāpunenga will prove useful for lawyers and judges when Māori customary terms arise in cases. But its value is much more significant than that. For those who are unfamiliar with tikanga, or customary law, it provides a unique insight into the history and workings of this rich and complex system as it pertains to obligations and rights. For those who are immersed in tikanga, it will provide a functional resource from which to draw upon when arguing from the basis of customary law.

It is true that for Aotearoa New Zealand to have a legal system that reflects the best of the values and principles of its two major component cultures, the historical legal practices of both need to be understood. While the concepts and institutions of the British legal system were the subject of much written documentation, the situation was quite the opposite for Māori customary law. In order to address this imbalance, in 1999 the Mātāhauariki Institute (a research institute established by the School of Law at the University of Waikato) set about assembling a collection of references to the concepts and institutions of Māori customary law. Te Mātāpunenga is the result.

Te Mātāpunenga is an impressive work. The book itself is striking and beautifully written. It reads as one voice, which pays homage to the compilers’ extensive revision. It is hard bound with an eye-catching cover and contains well-laid out pages illustrated with colour and black and white photos, lithographs and drawings. At its heart it is a collection of stories that explain Māori customary law, within which some very special treasures can be found. For example, it highlights that the concept of “mana whenua”, which was thought to originate in the Native Land Court, was actually used by ancestors prior to colonisation. It also traces the first use of the term, but not the concept, of “tūrangawaewae” to Isaiah

66:1. Overall, Te Mātāpunenga is everything a compendium should be: a comprehensive and well-organised source of information that provides access to a specialised body of knowledge.

The compilers do not pretend to have produced a definitive work, and they are confident that other scholars will build upon the foundations established here as the process of elucidating and developing customary law in Aotearoa New Zealand continues. Such an admission, however, should not draw attention away from the fact that this piece of work is an incredibly impressive undertaking.

A major obstacle for the book was the “general absence of systematic written material, and a widespread degree of confusion as to the nature and status of customary law, and its place in the legal system” (p 11). To overcome this, the Institute approached Māori leaders and experts

in order to discuss and record such knowledge of customary law that might be included.

The specialised body of knowledge covered in this compendium are the terms, concepts and institutions of Māori customary law as they are recorded in traditional and historical records. Its focus is on a particular function of custom, that as a source of law “which gives rise to obligation and right” (p 13). The compilers undertake a detailed discussion to further explain and elaborate this obligatory nature of custom. While incredibly informative, as a compendium of this specific kind, the discussion would benefit from some examples in Māori customary law.

Te Mātāpunenga is made up of 121 separate terms and concepts (or “Titles”), arranged alphabetically. Included under each are materials that state or suggest a normative principle of obligation, as well as materials that highlight concepts or practices necessary to understand the principle. This clarifies the reason behind including concepts such as “hau” (the vitality or vital essence of a person, place or object), and the inclusion of institutional procedures, such as “muru” (ritual seizure or stripping of goods from the guilty individual or community for an alleged offence), and institutional structures, such as “rūnanga”.

Each Title begins with a “Preamble” that contains a short explanation of its general meaning and comment on its scope, together with some etymological connections with wider Polynesian cultures.

All but one Title contains an introductory “Entry Guide” that gives a brief overview of significant elements in the sources (“Entries”) quoted, as well as cross-referencing to where the concept or institution is discussed under other Titles. This provides a useful resource for the reader who is searching for specific examples of custom in relation to a precise notion.

Before each citation, which are, in most cases, ordered chronologically, each Entry gives background information on the source and discussion of context and credibility issues. Consequently each Entry can be read as a stand-alone piece.

As a compendium of references, it is necessarily one of select references, and some judgment has been taken to determine which sources to cite. This judgment is driven by the compilers’ assessment of the explanatory power and insightfulness of the source, as well as its authority, credibility and/or public importance. That said, the selection is indeed extensive, traversing a wide range of historical and contemporary material.

Understandably, a number of writers are referred to on several occasions throughout the book. The compilers succeed in avoiding repetition through clever prose. The background information is always summarised differently, with emphasis placed on the subject of the Title.

Importantly, the sources cited also include those traditionally outside of the gaze of the Aotearoa New Zealand legal system, such as whakataukī, waiata, haka and biblical references in Te Reo Māori. Such sources go towards providing a greater “Māori voice” in the work. The compilers acknowledge the extreme importance of this. Focus on such material

is deliberately chosen as a means to counter the first hand European historical observations that are often culturally constructed texts from the viewpoint of the coloniser.

The inclusion of these Māori language materials provides two further significant aspects to the work. First, it provides non-Te Reo speakers with access to materials otherwise outside of their research ambit, complete with the cultural nuances of the descriptions. Second, it enables Te Reo speakers access to primary sources from which they can draw their own conclusions as to the subject matter and its meanings.

Unfortunately there are several Titles that do not refer to any Māori language sources at all. This is likely due to lack of adequate recording of traditional concepts in Te Reo, and highlights an area for further research and perhaps incorporation in future editions. It also may be worth considering including more contemporary descriptions of such concepts, perhaps with the disclaimer that such descriptions may differ from traditional understandings due to the forces of colonisation.

Notably the majority of the material referenced are first hand European observations. The compilers see value in using these. They argue that a critical reading of such sources can expose examples of Māori customary law in practice. However, I fear that if the readers themselves are not familiar with Māori customary law, misunderstandings may perpetuate. One way the compilers try to combat this is in their detailed description of the context of primary citations. It is therefore imperative that readers take the time to appreciate and understand the context of the cited material.

Te Mātāpunenga does not set out to determine “true custom”, rather it aims “to record what has at various times and in various circumstances been claimed to be custom by a person who might be expected to know of the matter from training, practice, or study” (p 11). It does, however, acknowledge when sources are disputed, are critical of other writers, or where writers may be mistaken. See for example the Entries entitled [#KPH 02], [#MAN 11] and [#Pan 02].

Fundamentally, Te Mātāpunenga is not going to appease those who are looking for deeper discussion of the values, ideas and cultural norms behind such concepts and institutions of Māori customary law. Many of the Titles are between one to four pages long. Notably, the Title pertaining to “tapu” is only three pages long when there are whole books written on the subject. “Pūremu” (adultery), a highly contested concept, has only two Entries.

Furthermore, without discussion around the cultural norms of terms with more than one meaning, some confusion may be created. For example, “hapū” is introduced as the “primary political unit” in Māori social organisation at the time of European contact (p 71). While it is described as originating from the Proto Nuclear Polynesian term “sapū” (pregnant), the retention of that meaning is not made clear. Thus, while whakapapa connections are discussed under the Title, the underlying notion of “hapū” as generating life is missing. A more expansive

discussion on the different meanings of the word would enable the reader to understand the dynamic nature of hapū as a social and political structure. In particular that hapū contained many whānau and generated growth through the establishment of new hapū.

That being said, this deeper discussion is not the aim of the book. But if one is looking for descriptions of customary law, from those with the expertise, standing and authority to make such declarations, this is the book to go to. Interestingly, by focusing on custom as that which gives rise to an obligation or right, Te Mātāpunenga draws attention to some customary law concepts that would not normally receive much attention in more generalised texts. One such concept is that of “kanga”, now known as to swear at someone, but which older uses denoted as an intention to cause more than momentary discomfort, or to curse. Another is the term “pana”, which covers banishment. Te Mātāpunenga also highlights that while one aspect of “utu” pertains to revenge, the term “uto” covers revenge as a separate and distinct concept.

Te Mātāpunenga is at its heart a historical resource. But it is also a comment on the changing nature of customary law. The stories contained within detail the impact of colonisation on the concepts and institutions of customary law, and the recognition, or redefinition, of such notions under the New Zealand legal system, including in the findings of the Māori Land Court and the Waitangi Tribunal and through incorporation in legislation. Such discussion works to shed light on the current status of customary law.

Ultimately, by looking back into the past to understand the historical legal practices of Māori customary law, Te Mātāpunenga provides an authoritative base from which to engage in dialogue on the future shape of our country’s legal system; one that reflects the best of the values and principles of its two major component cultures.

Abby Suszko, Lecturer,

Aotahi: School of Māori and Indigenous Studies,

University of Canterbury.

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