NZLII Home | Databases | WorldLII | Search | Feedback

Otago Law Review

University of Otago
You are here:  NZLII >> Databases >> Otago Law Review >> 2016 >> [2016] OtaLawRw 3

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Ruru, Jacinta --- "Toitū te Whenua, Toitū te Mana" [2016] OtaLawRw 3; (2016) 14 Otago LR 243

Last Updated: 12 January 2018



Inaugural Professorial Lecture

Toitū te Whenua, Toitū te Mana

Jacinta Ruru*

I Introduction

Ka tangi te tītī.

Ka tangi te kākā.

Ka tangi hoki ahau!

Ko Ranginui kōrua ko Papatūānuku ki waho nei, tēnā kōrua. Ko te whare e tū nei, tēnā koe. Ko ngā mana whenua o tēnei rohe, tēnā koutou. Ko Panehora te maunga. Ko Mangawhero te awa. Ko Tainui te waka. Ko Raukawa te iwi. Ko Ngāti Motai me Ngāti Te Apunga ngā hapū. Ko Te Apunga Paparamu te marae. Ko Karanama te tangata. Ko Ngāti Ranginui me Ngāti Maniapoto ngā iwi. Ko John Ruru rāua ko Kataraina Ormsby ōku tīpuna. Nō reira, tēnā koutou, tēnā koutou, tēnā tātou katoa. Thank you for being here with my whānau to mark this occasion as

I reflect on my research journey. In particular I acknowledge here this evening the Chief Executive Officers of both my koro and nanny’s iwi: Vanessa Eparaima (Raukawa Settlement Trust) and Stephanie O’Sullivan (Ngāti Ranginui Iwi Society Inc); the University leaders who walked in with me this evening led by Vice–Chancellor Professor Harlene Hayne; all those who have travelled to be here this evening in particular the many Māori law graduates; and to all of my colleagues and friends both present and absent. Thank you.

II My Story

So, to begin. I was born in December 1974 on the eve of political and legal change.1 Those who marched the length of the North Island demanding “not one more acre of Māori land”2 and those who engineered the Labour

* Professor, Faculty of Law, University of Otago and Co-Director, Ngā Pae o te Māmaratanga New Zealand’s Māori Centre of Research Excellence. The text of this article is my Inaugural Professorial Lecture delivered at the University of Otago, 12 September 2016 (footnotes added).

1 This opening deliberately mirrors the notion of the first words in Larissa Behrendt’s book Achieving Social Justice: Indigenous Rights and Australia’s Future (The Federation Press, Sydney, 2003). The Indigenous legal writing of many including Behrendt, John Borrows (author of for example Recovering Canada: The Resurgence of Indigenous Law (University of Toronto, Toronto, 2002), Māori jurists including Moana Jackson, Sir Eddie Taihakurei Durie and Justice Joe Williams, and all other Māori law academics have given me much confidence.

2 The famous Māori Land March September – October 1975 led by Dame Whina Cooper. See Aroha Harris “‘Not One More Acre’” in Hīkoi: Forty Years of Māori Protest (Huia Publishers, Wellington, 2004) 68.


government to establish the Waitangi Tribunal3 were landmark events that changed our legal system and laid the platform for all that has been done since. I was, of course, then oblivious to all this.

I was instead encased deep in the South Island, at the head of Lake Wakatipu, Glenorchy, at the foot of majestic mountain peaks and forested river valleys. We were far away from Dad’s childhood stomping ground of our tribal lands of Raukawa where he grew up next door to the humble whānau Paparamu Marae bookended by my nanny’s tūrangawaewae of Ngāti Ranginui and Ngāti Maniapoto. And we were far away too from my Pākehā mother ’s home upbringing in her loved city: New Plymouth. Growing up in these Te Waipounamu lands around Lake Wakatipu, walking the national park trails with Mum, scrambling along neighbouring mountain tracks with Dad who mined for scheelite and hunted possums, I knew these places were of significance to Ngāi Tahu but present instead to the general public was merely the overlaid English names and the Department of Conservation.

Something seemed amiss and remiss. This childhood unease with a place that I adored so much lead me on my adult journey of inquiry and eventually dreaming for better more respectful law to acknowledge Indigenous peoples’ rights, responsibilities and interests to remain governors and stewards of lands and waters essential to cultural identity and survival.

The discipline of law took hold of me in the 1990s. It was a chance encounter. It was not always obvious I would go to University. Few we knew had. I was rarely inspired in my Central Otago schooling. This changed in 5th form (year 11) when I read for the first time short stories by a Māori author about racism in our country.4 I knew then I would go to University because I wanted to know more. I thought then my career would be in documentary-making to better understand colonial injustice in our society, but once I began the study of law, I was hooked. I liked how I could build an argument to support a cause to be heard in a forum that had to seriously consider it: the courts.

I loved the University environment for learning and I particularly loved the puzzle of law encased within the protective mantel of Te Roopu Whai Pūtake (Otago’s Māori Law Students Association). All the law teachers motivated and encouraged me in my learning. But I struggled with much of the curriculum. It was perplexing to sit in lecture theatres learning about legal positivism, primary rules and secondary rules, clear cases and hard cases, all containing underlying messages that law is objective and just. I could not reconcile this standard of law with the stories my father ’s family told. These stories are about dispossession from ancestral land from the 1860s onwards through insidious legislation and local government rules. I knew our experiences were not unique; all

3 Treaty of Waitangi Act 1975.

4 In particular, Witi Ihimaera “Yellow Brick Road” in The New Net Goes

Fishing (Heinemann, Auckland, 1977) 1.


Māori families tell of similar accounts. These experiences were mostly invisible. Studying law gave me an insight into how the law was used to achieve colonial goals; it did not convince me that law operates on an unbiased, neutral terrain.5 And so I came to regard the subject of law as both shocking and fascinating.

But the discipline of law was changing. Iwi, hapū, whānau who have always sought justice since 1840 were making gains. That Māori success in 1975 became a catalyst for future change. In my childhood, in the 1980s:

• The Waitangi Tribunal’s jurisdiction was extended back to 1840, recognising that the Crown had a long history of seriously breaching the principles of the Treaty of Waitangi.6

Parliament enacted legislation for the first time in a modern era

requiring decisions made under the State Owned Enterprises Act

1986 to not act inconsistently with Treaty principles.7

• And the Court finally overruled the legal precedent that had been on the law books for more than a hundred years positioning the Treaty as a simple nullity.8

Māori were changing the legal landscape and our branches of

government were listening and responding.

In amongst this change, in 1999, I quietly transferred from LLB student to assistant lecturer because the then Dean and now late Professor Richard Sutton took the gamble to awhi (support) me into a legal academic career. He did so by organising, with Te Roopu Whai Pūtake

5 It is well documented that law school can be a hard place for Indigenous students. See Patricia A Monture “Now that the Door is Open: First Nations and the Law School Experience” (1990) 15 Queen’s LJ 179; John Borrows “Foreword: Issues, Individuals, Institutions and Ideas” (2002) 1

Indigenous LJ 1; Stephanie Milroy “Waikato Law School: An Experiment in Bicultural Legal Education” (2005) 8(2) YBNZ Juris 173; Jacinta Ruru “Legal Education and Māori” in Claudia Geiringer and Dean R Knight (eds) Seeing the World Whole: Essays in Honour of Sir Kenneth Keith (Victoria University Press, Wellington, 2008) 243; Gemma McKinnon “Supporting the Next Generation of Indigenous Law Students” (2014) 8(11) ILB

3. Dr Karyn Paringatai, Associate Professor Suzanne Pitama and I as co–directors of the newly established University of Otago Poutama Ara Rau Research Theme 2016–2020 are seeking multidisciplinary researched solutions to better enable Māori knowledge and practices in tertiary teaching.

6 Treaty of Waitangi Amendment Act 1985. For discussion of the work of the Tribunal, see Janine Hayward and Nicola R Wheen (eds) The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi (Bridget Williams Books, Wellington, 2004) and Nicola R Wheen and Janine Hayward (eds) Treaty of Waitangi Settlements (Bridget Williams Books, Wellington, 2012).

7 State Owned Enterprises Act 1986, s 9.

8 New Zealand Māori Council v Attorney–General [1987] 1 NZLR 641 (CA). See

Jacinta Ruru (ed) “In Good Faith”: Symposium proceedings marking the 20th

anniversary of the Lands case (New Zealand Law Foundation, Wellington,

2008).


(at the time lead by the formidable Paula J Wilson and the now late Jolene Patuawa-Tuilave),9 a mihi whakatau that brought into the Richardson Building Kāi Tahu representatives and my family with proceedings led by Ngāi Tahu kaumatua Edward Ellison.10 The Dean then sent me off for a leisurely month to introduce myself to the handful of Māori academics at the other law schools so as I would have a network of colleagues.11 This was an extraordinary gesture and one offered with deep insight recognising that the influence of Māori in the law was still new. It was only a decade earlier that Māori began graduating in law in any significant numbers (with one of Otago’s first Māori graduates being Wilson Isaac (completed his LLB in 1976), now the Chief Judge of the Māori Land Court and Chairperson of the Waitangi Tribunal and who we have named in honour of our Otago 2015 launched Te Īhaka Building Māori Leaders in Law Programme).

Returning back to campus from this Te Ika-a-Māui (North Island) trip, this network of support grew. For most of my employment Professor Mark Henaghan has steered Otago’s Faculty of Law and believed entirely in what I have sought to do. He is the most remarkable leader who finds ways to always say yes. Also at Otago: Te Tumu School of Māori, Pacific and Indigenous Studies embraced me with a formal welcome; Staff Women’s Caucus opened their arms and brought me into an across campus collective of academic and general female staff; and, in a little side room in the Clubs and Societies Building, I found my comrades – the handful of Māori staff from around the University where, together, we have found and sought to cement our place here at Otago initially under the umbrella of the Māori arm of the tertiary union, then as Awhi Mai Awhi Atu and more recently as Te Poutama Māori (the Māori Academic Staff Caucus).12 Beyond Otago, the Māori legal community, most prominently the Ngāi Tahu Māori Law Centre, the Māori Land Court judges and Te Hunga Rōia Māori o Aotearoa (the Māori Law Society of New Zealand) all were there for me, and well got me to work! My academic career was off before I had even had a chance to figure out the topic of my Masters thesis!

Reflecting back on my research career, three key catalysts in my fledging

9 Note the University of Otago in conjunction with Ngati Whatua have launched the Jolene Patuawa-Tuilave Māori Leadership in Law Scholarship. We welcome contributions at: <www.otago.ac.nz/study/ scholarships/database/otago061302.html>.

10 Former Chairperson of Te Rūnanga o Ōtākou and former Deputy

Kaiwhakahaere for Te Rūnanga o Ngāi Tahu.

11 Part of this trip included a seminal Māori law academic wānanga at

Raglan with many papers later published together in (2005) 8(2) YBNZ.

12 Early comrades included now titled Professor John Broughton, Anaru

Eketone, Pearl Matahiki, Dr Diane Ruwhiu, Associate Professor Michelle

Thompson–Fawcett and Dr Jim Williams. Over the years, with others

including most notably Janine Kapa-Blair, we have built a strong Māori

staff collective where we regularly come together to inspire and support

one another. See: <www.otago.ac.nz/te-poutama-maori/index.html>.


years as an academic have shaped my research outputs to date.

III Catalyst One: Ngāi Tahu Claims Settlement Act 1998

The Ngāi Tahu Claims Settlement Act 1998 captured my attention. How could it not? It spoke to Ngāi Tahu relationships with the lands of my childhood. Here was legislative recognition that Mount Earnslaw was Pikirakatahi. I wanted to know more. And I wanted to understand why lands obviously so important to tangata whenua were locked up in national parks with a legal ethos that is, and remains, premised entirely on mono–cultural Pākehā values for protecting land.

Most obviously, an inherent cultural divide exists in conservation law that goes to the heart of how Māori and Pākehā differently view the world. The generalised Pākehā intent has been preservation for protection of treasured landscapes and native species. This intent dominates conservation legislation.

Exceptions exist for permitting the New Zealand cultural passion for salmon and trout fishing even in national parks where such introduced species have decimated native species. No (or very little) exceptions exist in law for permitting the cultural activities of Māori despite native flora and fauna being integral to cultural identity and survival.

The purpose of our national parks in New Zealand is to preserve:13

... in perpetuity as national parks, for their intrinsic worth and for the benefit, use, and enjoyment of the public, areas of New Zealand that contain scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest.

Completely absent from this purpose section is the Māori relationship with these lands. The Ngāi Tahu Claims Settlement Act 1998 was the first statute to punch significant holes into the walled national parks to let breathe again the Ngāi Tahu understandings of these lands. The reconciliation mechanisms inherent within this settlement statute include:

• Recognition that Aoraki Mount Cook is a most important ancestor of Ngāi Tahu and that that maunga (mountain) will be returned to Ngāi Tahu for a period of seven days when they wish to action this. At the expiry of the seven days, the mountain will be gifted back to the nation.14

• Provision for Ngāi Tahu representation on relevant Conservation

Boards and the New Zealand Conservation Authority;15 and

• Laying of topuni (to cover/cloak) over stretches of national park

lands that emphasise the Ngāi Tahu cultural, spiritual, historic and

13 National Parks Act 1980, s 4(1).

14 Ngāi Tahu Claims Settlement Act 1998, ss 13–18.

15 Ngāi Tahu Claims Settlement Act 1998, ss 272–273.


traditional association with that area of land.16

Fast–forward to this country’s most recent Treaty settlement concerning a national park: Te Urewera. Te Urewera, named a national park in

1954 and managed as Crown land by the Department of Conservation pursuant to the National Parks Act 1980 became simply Te Urewera on

27 July 2014: “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person”.17 Te Urewera Act 2014 is undoubtedly legally revolutionary here in New Zealand and on a world scale.18 All Treaty settlement statutes including most certainly this one show that dreams are possible even in an imperfect legal and political matrix. Te Urewera Act makes it clear that those lands cease to be Crown land, and cease to be a national park.19 Te Urewera is now not managed by the Department of Conservation but by a new Te Urewera Board. This Board is responsible “to act on behalf of, and in the name of, Te Urewera”.20

The Board, in contrast to nearly any other statutorily created body, encourages acknowledgment of Māori law. The Board can “consider and give expression to Tūhoetanga” and “Tūhoe concepts of management such as rāhui, tapu me noa, mana me mauri, and tohu”.21 And the Board “must consider and provide appropriately for the relationship of iwi and hapū and their culture and traditions with Te Urewera when making decisions”22 and that the purpose of this is to “recognise and reflect” Tūhoetanga and the Crown’s responsibility under the Treaty of Waitangi (Te Tiriti o Waitangi).23

This statute uses beautiful language to explain why Te Urewera is so important. It is so pertinent that I wish to read a little from the Act:24

(1) Te Urewera is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty.

(2) Te Urewera is a place of spiritual value, with its own mana and mauri.


16 Ngāi Tahu Claims Settlement Act 1998, ss 237–253.

17 Te Urewera Act 2014, s 11(1). For discussion on this Act see Jacinta Ruru

“Tūhoe-Crown settlement – Te Urewera Act 2014” (2014) October Māori LR

16 and Jacinta Ruru “Reimagining Governance for ‘Yellowstone’ Modeled

National Parks in the New Era of Indigenous Legal Recognition” in Lars

Elenius and Christina Allard and Camilla Sandström (eds) Indigenous

Rights in Modern Landscapes: Nordic Conservation Regimes in Global Context

(Routledge, Oxon, 2017) 113.

18 For example, international media coverage includes: Bryant Rousseau

“In New Zealand, Lands and Rivers Can Be People (Legally Speaking)”

The New York Times (New York, 13 July 2016) at A11.

19 Te Urewera Act 2014, s 12.

20 Te Urewera Act 2014, s 17(a).

21 Te Urewera Act 2014, s 18(2).

22 Te Urewera Act 2014, s 20(1).

23 Te Urewera Act 2014, s 20(2).

24 Te Urewera Act 2014, s 3.


(3) Te Urewera has an identity in and of itself, inspiring people to commit to its care.

(4) For Tūhoe, Te Urewera ... is the heart of the great fish of Maui ...

(5) ... their place of origin and return, their homeland. ...

(7) Te Urewera is prized by other iwi and hapū ...

(8) Te Urewera is also prized by all New Zealanders as a place of outstanding national value and intrinsic worth; it is treasured by all for the distinctive natural values of its vast and rugged primeval forest, and for the integrity of those values; for its indigenous ecological systems and biodiversity, its historical and cultural heritage, its scientific importance, and as a place for outdoor recreation and spiritual reflection.

The Hon Dr Nick Smith, the then Minister of Conservation in 2014 stated when the Te Urewera Bill was in its 3rd reading in Parliament:25

It is surprising for me, as a Minister of Conservation in the 1990s who was involved under the leadership of the Rt Hon Jim Bolger—who is in the House—in the huge debate that occurred around the provisions of the Ngāi Tahu settlement in respect of conservation land, how far this country and this Parliament have come when we now get to this Tūhoe settlement in respect of the treasured Te Urewera National Park. If you had told me 15 years ago that Parliament would almost unanimously be able to agree to this bill, I would have said “You’re dreaming mate”. It has been a real journey for New Zealand, iwi, and Parliament to get used to the idea that Māori are perfectly capable of conserving New Zealand treasures at least as well as Pākehā and departments of State.

I agree. Te Urewera is a profound settlement that was not thought possible 15 years ago. Even in my own writing on a comparative national park study, I concluded that work in 2012 with this statement:26

National park lands encase the lived homes of Indigenous peoples. Today, the law reflects a new societal goal that seeks to reconcile with Indigenous peoples for the past wrongs of taking their lands and denying them the very means to be true to themselves, their ancestors, and their grandchildren. National parks have the potential to play an instrumental role in committing to this reconciliation journey. National parks are symbolic of our national identity and our future, and the parks contain Crown lands that thus enable the Crown to lead in implementing a new way of thinking about owning and managing lands including national parks.

Even though I dreamed of and set out options for radical legislative reform when writing that conclusion, I did not know that the horizon

25 (23 July 2014) 700 NZPD 19474. Smith was Minister of Conservation for

two National Party led Governments, the first from 16 December 1996–10

December 1999 and the second from 22 January 2013–8 October 2014.

26 Jacinta Ruru “Settling Indigenous Place: Reconciling Legal Fictions in

Governing Canada and Aotearoa New Zealand’s National Parks” (PhD

thesis, University of Victoria, Canada, 2012) at 360.


for change was so near. The enactment of Te Urewera Act makes me immensely proud to be a New Zealander. It offers hope and inspiration that legislative change is possible. And it gives us heart and courage for us in New Zealand as we consider the future of our relationships as sourced in the Treaty of Waitangi. While we have many challenges for relationship building and true restitution, there are some glimmers of hope and these come from our brave Māori communities and Māori leaders who are and always have pushed the Crown’s boundaries for justice and what is right. I hope that the horizon is now near for the reform of the National Parks Act 1980. We need a more inclusive section

4 explanation for the purpose of our national parks, and the Treaty of

Waitangi settlement statutes provide the key for how to do this.

While the Ngāi Tahu Claims Settlement Act 1998 had captured my attention and went on to shape my postgraduate theses and lead me onto many wonderful interdisciplinary landscape and geography collaborations,27 the Court of Appeal decision Bruce v Edwards stopped me dead.

IV Catalyst Two: Bruce v Edwards 2002

The unease I had felt in law school as a student came crashing back down on me as a lecturer. The history of converting Māori customary land into Māori freehold land represents a dark history of New Zealand where the colonial government and the colonial courts were entirely successful in breaking up the Māori estate.28 However, that march in 1975 with the catchcry of “not one more acre of Māori land” led to new legislation in 1993 – Te Ture Whenua Māori Act / the Māori Land Act 1993 – that supposedly marked a new reformed era with recognition that land is a taonga tuku iho (generational treasure).29

But this Bruce v Edwards30 case was the third in a row from the Court of Appeal to permit other legislation and principles to override the new

1993 Act.31 Even though the 1993 Act clearly marked a new era for Māori land with the overriding statutory intent to now keep Māori land in Māori hands,32 no upper appeal court had by then found in favour of Māori land retention in the hands of Māori owners.

27 For example see Jacinta Ruru “Te Tiriti o Waitangi and the Management of National Parks” (LLM Thesis, University of Otago, 2001) and Jacinta Ruru, Janet Stephenson and Mick Abbott (eds) Making Our Place: Exploring Land- use Tensions in Aotearoa New Zealand (Otago University Press, Dunedin,

2011).

28 See Richard Boast The Native Land Court 1862–1887: A Historical Study,

Cases and Commentary (Thomson Reuters, Wellington, 2013).

29 Te Ture Whenua Māori Act 1993, preamble.

30 Bruce v Edwards [2002] NZCA 294; [2003] 1 NZLR 515 (CA).

31 See Attorney-General v Māori Land Court [1998] NZCA 247; [1999] 1 NZLR 689 (CA) and

McGuire v Hastings District Council [1999] NZCA 318; [2000] 1 NZLR 679 (CA). See Nin

Tomas “Me Rapu Koe Te Tikanga Hei Karo Mo Nga Whenua: Seek the

Best Way to Safeguard the Whenua” (2000) 9 BCB 49.

32 See Te Ture Whenua Māori Act 1993, preamble and ss 2 and 17.


What happened in this case? Essentially a Māori couple who owned a farming block of Māori freehold land in South Taranaki agreed to sell the land for $2.2 million dollars to a Pākehā farming couple. The agreement was conditional on the vendors first changing the status of the land from Māori freehold land to General land.33 How to do this? By deception. The vendors’ solicitor misled the Māori Land Court saying that the General land status would help the vendors to better utilise the land themselves. The Court believed the story. The land changed to General land. The sale agreement became unconditional and the Pākehā couple gained an equitable interest in the land. But what about the whanaungatanga (the relatives) of this land? The 1993 Act makes it crystal clear that they must be given a right of first refusal before their ancestral land is sold on the open market.34 The whanaungatanga only became aware of the deception presented in the Māori Land Court through the ‘rumour mill’ and sought urgent action for the Court to rehear the change of status order.

At issue in this case was essentially two rights to land: the Pākehā couple who had an equitable interest in the land following a negligent and deceptive court hearing, and the Māori relatives of the vendors who had a statutory right of first refusal. The Court of Appeal found in favour of the Pākehā couple. While the Court may have been correct in applying the law in reaching this conclusion, there were still two deeply concerning issues about this case.

First, there was a complete absence in the Court of Appeal judgment that fundamental new drivers of the 1993 Act require the judiciary to appreciate the importance of retention of Māori land. This driver is captured and repeated in the long title to the Act, the preamble, and sections 2 and 17. The Court of Appeal did not even mention one of these sections.

Second, the narrative. The Court of Appeal judgment went on at length that the Pākehā couple would “suffer considerable hardship”.35 Why? Because, in the Court’s words:36

They would have to vacate the farm where they have been living for the past two years and would have to relocate their livestock. They are farmers by occupation but would have no farmland. They would be put in the position of having to try to acquire a comparable farming property at current market values ... [T]he value of dairy farms in Taranaki had risen by about one-third since the contract was made ... [I]t is clear that the Bruces would be considerably disadvantaged ...

33 Māori freehold land is land where the “beneficial ownership of which has been determined by the Māori Land Court by freehold order”: Te Ture Whenua Māori Act 1993, s 129. Māori freehold land originated as a land category in 1862: see Native Lands Act 1862.

34 Te Ture Whenua Māori Act 1993, s 147(2) as originally enacted (now

repealed; see now s 147A).

35 Bruce v Edwards, above n 30, at [7], [71], and [73] (emphasis added).

36 At [71].


In comparison, the Court acknowledged in brief that the whanaungatanga would be disadvantaged (but not considerably) and in the Court’s words: “We recognise the sorrow the loss of the land will cause” as if the whanaungatanga only have a shallow emotional connection to the land. 37 Anyway, it was a travesty of a case. The real travesty though is that there were many others just like this that came before it. But this case did signal a turning point and no subsequent court has failed to consider the pillars of the 1993 Act: the preamble, and sections 2 and 17.

Bruce v Edwards was the first case that I wrote about and marked the beginning of an area of law that has been a mainstay of my research and teaching career ever since.38 The most remarkable change more than a decade on is that we now have ready access to Māori Land Court decisions (a given for other areas of law) and consequently a growing deep Māori land jurisprudence. I mihi (acknowledge) to two here this evening who have contributed enormously to this current work: Craig Linkhorn and Dr Carwyn Jones (co-editors of the Māori Law Review).39

And I mihi to all others who have helped, especially two Māori academics who did much to support me and who passed away far too young: the mighty Dr Nin Tomas40 and the gentle Matiu Dickson.41 He mihi nunui ki a kōrua.

Māori land is once again in for a statutory shake up. Significant reform is working its way through Parliament right now.42 I and many others fear the result will be a return to the pre–1993 days and a return to cases like Bruce v Edwards that just do not appreciate the importance of retention of Māori land for Māori, but also for the nation.43

V Catalyst Three: Ngāti Apa

While the Ngāi Tahu Claims Settlement Act 1998 had captured my attention and the Bruce v Edwards case had horrified me, the Attorney- General v Ngāti Apa decision brought instant deep relief.44 This is the famous foreshore seabed moment.45 I read the case with joy. This was it.

37 At [73].

38 Jacinta Ruru “Bruce v Edwards: the Court of Appeal’s latest ruling on

Māori land” (2003) 10 BCB 169.

39 See <www.maorilawreview.co.nz>. The founding editor, and editor for

more than the first decade, was Tom Bennion.

40 Dr Nin Tomas, Faculty of Law, University of Auckland. See Jacinta Ruru

“Whānau verses Whakapapa in the Māori Land Court: A Tribute to Nin

Tomas” (2017) 4 Te Tai Haruru (J Māori LW) (forthcoming).

41 Matiu Dickson, School of Law, University of Waikato.

42 See Te Ture Whenua Māori Bill 2016.

43 See Waitangi Tribunal He Kura Whenua ka Rokohanga: Report on Claims

about the Reform of Te Ture Whenua Māori Act 1993 (Wai 2478, 2016).

44 AttorneyGeneral v Ngāti Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

45 See Andrew Erueti and Claire Charters (eds) Māori Property Rights and

the Foreshore and Seabed: The Last Frontier (Victoria University Press,

Wellington, 2007).


This was the case that finally overruled conclusively an 1877 judgment that had lived on for more than 120 years in New Zealand case law. In the words of that 1877 colonial judge, Māori were “barbarians without any form of law or civil government”.46 He also quoted from Lord Normanby, who said that Māori were “a people composed of numerous, dispersed, and petty tribes, who possess[ed] few political relations to each other, and [were] incompetent to act, or even to deliberate, in concert”.47 This

1877 finding enabled a judicial rewrite of history. It overturned earlier case law,48 declared the Treaty of Waitangi a “simple nullity”,49 and introduced a new story of nation building into New Zealand: that the British acquired sovereignty and the property of New Zealand not by cession but by discovery. In other words in the eyes of the British, New Zealand was terra nullius (no man’s land).50

It took a 2003 Court of Appeal judgment to conclusively overrule that

1877 case. And herein lies the issue for Māori in the law. The New Zealand

state legal system has for the most part been hostile to Māori. This is why

the learning of law for Māori students can be hard, and the practice of

law for Māori can be tough. The Ngāti Apa case turned this legal history

around. It revived an earlier 1847 case,51 and brought New Zealand back

in line with early English common law and the contemporary common

law developments in Canada and Australia.52 It held:53

When the common law of England came to New Zealand its arrival did not extinguish Māori customary title ... [T]itle to it must be lawfully extinguished before it can be regarded as ceasing to exist.

So the question here was: did Māori customary title in the foreshore

and seabed – land either permanently or temporarily under salt water

– still exist? The Court of Appeal held ... well, maybe. The place to

explore this with evidence would be the Māori Land Court.54 The Court

of Appeal simply held: the Māori Land Court has jurisdiction to hear

evidence and determine if stretches of the foreshore and seabed remain


46 Wi Parata v Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur NS 72 (SC) at 77 per

Prendergast CJ.

47 Dispatch from Lord Normanby to Captain Hobson acknowledging New

Zealand as a sovereign and independent State (14 August 1839) as cited,

above n 46, at 77 per Prendergast CJ.

48 R v Symonds (1847) NZPCC 387 (SC).

49 Wi Parata v Bishop of Wellington, above n 46, at 78 per Prendergast CJ.

50 See David V Williams A Simple Nullity? The Wi Parata case in New Zealand

law and history (Auckland University Press, Auckland, 2011); Grant

Morris Prendergast: Legal Villain? (Victoria University Press, Wellington,

2014); Mark Hickford Lords of the Land: Indigenous Property Rights and the

Jurisprudence of Empire (Oxford University Press, Oxford, 2011).

51 R v Symonds, above n 48.

52 Delgamuukw v British Columbia [1997] 3 SCR 1010 and Mabo v Queensland

(No 2) [1992] HCA 23; (1992) 175 CLR 1 [Mabo case].

53 Attorney–General v Ngāti Apa, above n 44, at [183] and [185].

54 Te Ture Whenua Māori Act 1993, s 131(1).


Māori customary land.55 Of course, within 24 hours the joy in reading the decision fast turned to bewilderment as the politicians announced imminent statutory reform to ensure iwi, hapū, whānau would never have the opportunity to bring such a case in the courts.56

The Ngāti Apa case has defined much of my research.57 I believe that we do have hope within our common law, inherited from England, to build more respectful law. Ngāti Apa shows us this is possible ... in theory. While legislation has clearly extinguished any possible Māori common law interests in the foreshore and seabed, there remains uncertainty, for example, with freshwater. I have argued for some time that it ought to be possible.58 It is wrong for the Prime Minister to espouse simply one component of the common law that says no one owns water. It is wrong because there is another component of the common law – the doctrine of native title – that recognises Māori continuing to have ownership of property.

VI Conclusion

And so our legal system evolves. Many challenges and opportunities are here right now for New Zealand to embrace a more respectful legal system if we wish. To start, we could reform the National Parks Act

1980, throw out Te Ture Whenua Māori Bill 2016, and recognise Māori

continuing to have ownership of water!

Toitū te Whenua. Toitū te Mana. Our lands and authority endure.59

Or in the words of the vision for Ngā Pae o te Māramatanga New

Zealand’s Māori Centre for Research Excellence: “Ko te Māori e arataki

ana i a Aotearoa ki te ao kei mua. Māori leading New Zealand into the

future”.60

Thank you for being here this evening. My research, teaching and service experiences have only been made possible by many of you

55 Māori customary land is statutorily defined as land “held by Māori in accordance with tikanga Māori”: Te Ture Whenua Māori Act 1993, s 129(2)(a).

56 See Department of the Prime Minister and Cabinet The Foreshore and Seabed of New Zealand: Protecting Public Access and Customary Rights: Summary of the Government’s Proposals (August 2003) and the subsequent Foreshore and Seabed Act 2004 (repealed and replaced by the Marine and Coastal Area (Takutai Moana) Act 2011).

57 Most recently Jacinta Ruru “Lenses of Comparison across Continents: Understanding Modern Aboriginal Title in Tsilhqot’in Nation and Ngāti Apa(2015) 48(3) UBC L Rev 903.

58 Jacinta Ruru “Indigenous Restitution in Settling Water Claims: The Developing Cultural and Commercial Redress Opportunities in Aotearoa, New Zealand” (2013) 22(2) Pac Rim L & Pol’y J 311.

59 These Māori words, taken from a whakataukī (proverb), have guided much of what I have done. For an insight into whakataukī see A E Brougham, A W Reed and Tīmoti Kāretu The Raupō Book of Māori Proverbs (Penguin Group, Auckland, 2012).

60 See: <www.maramatanga.co.nz>.


who are here this evening. Before I close, I make special mention to my whānau and especially my parents Andrea and Norman Ruru, my brother Jared and his family and my sister Rachel and her family, for always being there, for always believing that University was a possibility, and for enabling me to do what I have done in my career. To Andrew Geddis, my husband, who has been with me every step of the way in this academic career – here’s to workplace romance! You have supported and encouraged all I have done and enabled much. And for bringing your family into my life. Especially thank you to my mother-in-law Edith Geddis who, together with my parents, enriches the lives of us and our children Ariana and Nicholas. To all the Māori staff here at the University of Otago, and to all of the Māori law students past and present, to me you are the heart and soul of this campus and without you I would not have lasted a year here. Ngā mihi nunui ki a koutou. Tēnā koutou, tēnā koutou, tēnā koutou katoa.


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/journals/OtaLawRw/2016/3.html