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Mäori women are the pivotal point – the soul of Mäori and
the whänau. – Rohe 10
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38 Before the signing of the Treaty of Waitangi, Mäori women had access to and exercised influential roles (Binney 1996, 26). Under Article III of the Treaty, Mäori were granted “all the rights and privileges of British subjects” and with that commenced the assimilation of Mäori into the British way of life (Pratt 1992, 39). The influential role of Mäori women was inconsistent with British attitudes to women at the time and that role was challenged. In particular,
39 The Mäori female presence is a constant in Mäori traditional beliefs about the origins of humankind, the transfer of knowledge and wisdom, and the restoration of balance. Mäori origins are traced back through human generations and gods and goddesses to Ranginui, the Sky Father, and Papatüänuku, the Earth Mother. Papatüänuku is the ancestress of all things and her children are the guardians or the progenitors of everything on or under the earth, sea and skies. They express the role and significance of women in traditional society.
40 According to traditional Mäori beliefs, the two grandchildren of Papatüänuku, Hineahuone (who later changed her name to Hine-nui-te-po), and her sister Hinerauwharangi, were the first to receive human form. They were empowered by the guardians and gods to be the receptacles of all knowledge which they then transferred genealogically and genetically through demigods and demigoddesses to Mäori. This world view was expressed in and through whakapapa, the connection between human beings and all things in the universe being described in terms of marriage, procreation and descent. Through Papatüänuku and Hine-nui-te-po, Mäori women were seen as the beginning and the end of life in this world.
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Mäori women are the heart and soul of their whänau. –
Rohe 1
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41 Women as bearers of children were the nurturers of whänau and hapü. The term whänau signifies
a group of relatives defined by reference to a recent ancestor (tupuna), comprising several generations, several nuclear families and several households, and having a degree of on-going corporate life focused in group symbols such as a name, a land base (türangawaewae) and taonga. (Durie-Hall and Metge 1992, 61)
42 There are two different ways of defining whänau membership. First, whänau members can be defined as the direct descendants of the whänau ancestor. However, this definition excludes the husband or wife of a descendant. Secondly, whänau can be defined as an extended family including spouses and adopted children who are not direct descendants but who participate in the activities of the whänau group. Each of these two definitions may assume primacy for different reasons. The first comes to the fore in relation to issues of management of group property, selection of group spokespersons, and the group’s relationship with the hapü and iwi. The second comes to the fore in relation to mutual support, child raising and the organisation of hui.
43 As an illustration of the value of the nurturing role of women in te ao Mäori, Te Arawa tradition regards women as the more vital component to the guarantee of the survival of future generations. Tapu is attached to women because of the obligation and ability to ensure the future of iwi. This obligation is described by the ritual reference to women as te whare tangata (the housing of the human species).
44 Dame Joan Metge, in New Growth from Old: The Whänau in the Modern World, discusses the complementarity of roles between male and female in marriage, family and whänau as te tikanga tuku iho no ngä tupuna: the customs of the ancestors (Metge 1995, 9). Furthermore, mana was attached to the role – commonly exercised by Mäori women – of keeping the affairs of the communal group “buoyant and operational” (Mikaere 1994, 2).
45 It is sometimes assumed by non-Mäori that, because the role of formal speech-making on the marae was and is the role of men in most iwi, a superior status is accorded to men. However, only those unschooled in marae protocol would make such an assumption. Many male speechmakers rely on the women of their whänau for advice before and during the speeches and in choosing appropriate waiata. At most hui women work to ensure the smooth running of the hui, which complements what their men are doing in a “different and equally valued way” (Metge 1995, 97). Also, on many marae, the exclusion of women from formal speech-making applies only during the pöwhiri which usually takes place outside on the open marae. The kaupapa of the day is discussed inside the wharenui and women participate in the discussions and the decision making. Exclusion of women from formal speech-making is also associated with their importance as life-givers: according to Te Arawa kawa, there was often violence on the “marae ätea” and if a male died then only one life was lost, but if a woman was killed then a whole generation of her line was lost with her.
46 The society which evolved accorded roles which, in many areas, enabled certain women and men to play a leading part in the community. Lines of descent and birthrights acquired within the hapü may be traced through men or women and if the mother was of higher rank than the father, then their children could trace their descent through the mother, with whom their increased rank and prestige originated (Binney 1996, 25). While there was a preference for the senior male line in tracing seniority in many tribes, rank appears to have been the main determinant of roles in pre-European Mäori society. Even slaves, who were sometimes traded as property or killed for sacrifice or food, could, by ability and will, become group leaders. If they married a free person their children inherited that person’s descent group membership (Salmond 1991, 353).
47 There were Mäori women of rank who possessed both mana and tapu. Women’s mana (personal and political authority within a community) could be inherited from male and female tupuna, as well as conferred on female and male descendants. An example is Waimirirangi, whose mana ranged across almost all the major iwi of Northland. Unpublished Mäori manuscript sources are full of examples of Mäori women of property and mana. In terms of tapu, women’s tapu is said to exist because they were the channel between the realm of divine forces and the human realm (Binney 1996, 26).2
48 In matters of diplomacy and negotiation, women played a major role. Waitohi, sister of Te Rauparaha of Ngäti Toa, was a frequent negotiator on his behalf. Te Pikenga, wife of Te Rangihaeata (Te Rauparaha’s nephew) was often involved in negotiations between Ngäti Toa and her own Ngäti Apa people. Marriages could, of course, found important strategic alliances between hapü or iwi and at leadership level were events of major political importance.
49 The transmission of specialised knowledge was often vested in women and covered a diverse area from childbirth to weaponry. Women also took a dominant role in the composition of songs such as waiata aroha, waiata oriori and pätere which recorded tribal knowledge for future generations.
The women who were guardians of such knowledge were therefore relied upon, not just to transmit their wisdom to following generations, but to carefully select the appropriate recipients and to teach them well. In fulfilling this role, they were much more than caretakers of knowledge: they were guardians of the spiritual welfare of their iwi. (Mikaere 1995, 62)
50 In many hapü and iwi, the strength and influence of the female ancestor was, and is, commemorated in its name, for instance Te Whänau a Hinerupe, Te Whänau a Ruataupare, Rongomaiwahine, Ngäti Hine. Tribal leader Apirana Mahuika has written of his own iwi, Ngäti Porou, that women there were leaders in the fullest sense (Metge 1995, 97).
51 Mäori women as individuals owned “use-rights” over land and resources. Those rights could be passed to a woman by either parent and would remain that woman’s property and not become that of her husband if she married. The woman could then hand these use-rights on to any or all of her children (Hohepa and Williams 1996, para 94).
52 A significant indicator that there was no hierarchy of sexes in traditional Mäori society is the language. Nouns and pronouns are gender neutral: for example, ia applies to both he and she.
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Pre-war men used to support Mäori women and now machoism and
chauvinism have fragmented many whänau. – Rohe 1
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53 Power and authority over the family was the expectation of the British Victorian male (Graveson and Crane 1957, xi). As described by Dame Anne Salmond:
At the time of European settlement (from 1814 onwards) European gender relations were controlled by an ideology of male dominance far more severe than the agnatic biases that existed in Mäori reckoning of descent group status. European women were legal minors who came under the guardianship of men and they had no independent rights to control property or to formal participation in political decision-making. Moreover the Protestant religious sects which missionised New Zealand practised male ritual dominance, and under such influences Mäori women had much to lose. (Salmond 1991, 353–354)
54 The imposition on Mäori of colonial standards subordinated Mäori women and contributed directly to the diminution of their value in Mäori society and consequently, in the new regime. Mäori women are now highly vulnerable and have few avenues of support – either material, spiritual, or even from their menfolk – available to them.
55 When the Treaty of Waitangi was signed, Mäori women of rank maintained powerful positions within the social and political organisations of their tribal nations. This is reflected in the fact that some women signed the Treaty of Waitangi on behalf of their hapü: to date 13 Mäori women have been identified as signatories to the Treaty and more may be identified (Ballara 1993, 133–134).
56 At that time, Mäori women were acknowledged as owners of Mäori land under Mäori law and custom (Rei 1993, 8–9). Riria Ponau, a chiefly ranking woman of Whangapoua, Coromandel Peninsula, owned a forest and in 1830 signed the kauri cutting contracts in that area.3 Another example is Hineipaketia whose approval had to be obtained by Te Hapuku of Kahungunu, in 1850, before he could sell the Waipukurau block. She was the person of “highest rank” in the Heretaunga District at the time (Mäori Land Court Minute Books, Coromandel Bk I, 217ff).
57 During the latter part of the nineteenth century, Mäori women continued to play important and active roles, particularly those women involved with the Mäori land movements and the land wars (Ballara 1993, 133–134).4 In leadership matters, Mäori women maintained prominent positions in Mäori communities. An example is Te Paea, sister of King Tawhiao, who was famous for her skills as a peace maker and mediator, and persuaded Ngäti Kahungunu to cease their pursuit of Te Kooti into the Urewera district in the period 1868–1870 (Binney 1995, 240). Later in the century Ani Kaaro, grand-daughter of Patuone, was consulted by Waikato chiefs before the signing of the Treaty of Union between Waikato and Ngapuhi in 1885 (Orange 1987, 217). Other women assumed major roles in the Mäori spiritual and religious movements such as Ringatu (see generally Binney 1989).
58 However, with the exposure to a new economy, introduced disease, land alienation and Christianity, Mäori women’s control, authority and direct participation in Mäori self-government began to change.5 In addition, the status of Mäori women as organisers was undermined as British values and norms started to influence traditional practices and beliefs. Judith Binney, in Ngä Morehu: The Survivors, suggests that European attitudes towards women’s roles may have been gradually internalised by nineteenth-century Mäori males resulting in women’s roles being re-defined by men (26).
59 It is noticeable that early European writers marginalised the importance of the female essence in early Mäori cosmogony, customs, values and norms (Mikaere 1988, 74–102). Marginalisation continued with the insistence of officials on “patronymic surnames and with the emphasis placed on male dominance by the Päkehä population” (Metge 1995, 132). An early example of this lack of understanding is highlighted by Dr Claudia Orange who notes Major Bunbury’s refusal to allow a woman of rank to sign the Treaty of Waitangi (Orange 1987, 90). It is also reflected in the fact that negotiations regarding the sale and purchase of Mäori land in the main involved only men (see, for example, the Waitangi Tribunal’s Ngai Tahu report on purchases in the South Island and the 1995 report on Te Whanganui-a-Orotu, chapters 3–4, on the Ahuriri purchase).
60 The influence of introduced laws and culture eventually affected the core of Mäori society. When the English common law was applied to Mäori women, their status was reduced to that of their English counterparts.
61 Perhaps the words Shakespeare put into the mouth of Petruchio are a fitting start for a brief but necessary examination of the common law which arrived to civilise Mäori women:
She is my goods, my chattels; she is my house
My household stuff, my field, my barn
My horse, my ox, my ass, my anything.
(The Taming of the Shrew 3.3)
This view of women as property persisted in English law for two-and-a-half centuries from Shakespeare’s day (see Graveson and Crane 1957, xi).
62 In nineteenth-century England, the husband was the authoritarian head of the family, with powers over both person and property of his wife and children. On marriage, husband and wife for many purposes became one person in law and all the wife’s personal chattels became the absolute property of the husband. He could dispose of her leasehold property during his life and enjoy the benefit of her freehold estate during her life. In criminal law a presumption existed that a wife who committed a felony (other than the most serious ones) had been coerced by her husband. Civilly the husband was liable for torts, such as slander, committed by his wife (Graveson and Crane 1957, 2–3).
63 These aspects of the nineteenth-century relationship of husband and wife reflect the relations of society which “were largely relations of status, that is, a legal position imposed by rules of general law by virtue of persons being in a certain relationship with one another, such as husband and wife, parent and child, master and servant” (Graveson and Crane, 3). Thus no doubt, for English women, marriage meant status.
64 In mid-Victorian England, the father had the sole and exclusive control and guardianship of the children. Even on the father’s death, legal custody of the children could be appointed under the father’s will, but not often under the will of the widow (Graveson and Crane, 17). Illegitimate children were generally removed at birth to a baby farm. They came from both rich or poor families: “According to the evidence of the Superintendent of Metropolitan Police, about two thirds of the children farmed were illegitimate” (Graveson and Crane, 40). Illegitimacy remained an incurable stigma.
65 In England, the ecclesiastical courts administered matrimonial causes until the Matrimonial Causes Act 1857 came into force. Until that time, the courts recognised both common law marriage and also marriage contracted per verba de praesenti: “by words of the present [tense]”, a phrase applied to a valid contract of marriage. The Marriage Act 1753 (Lord Hardwicke’s), regulated the formalities required for a valid marriage. Marriage at common law was valid where the parties took one another as man and wife in the presence, before the Reformation, of an episcopally ordained clergyman and, after the Reformation, in the presence of a Deacon: R v Mills (1843 – 1844) 10 Cl & F532.
66 Marriage per verba de praesenti existed when the parties, in words in the present tense, entered into a contract of marriage and were declared husband or man and wife in the presence of witnesses. A finding could be sought from the ecclesiastical courts in favour of a marriage contracted per verba de praesenti. Where such finding was made, the parties would be admonished by the court to marry formally in church. A valid marriage in English law was necessary to establish spouses’ and children’s rights to property. Children of a valid marriage were legitimate and only legitimate children had inheritance rights. (Graveson and Crane, 20 and 27)
67 According to Mäori custom, the public expression of approval established a couple as “married”. Once approval was given, the couple was considered married even if co-habitation was delayed (Durie-Hall and Metge 1992, 62). In Rira Peti v Ngaraihi te Paku (1889) 7 NZLR 235, Reed J described the legal status of Mäori customary marriage:
[I]n what is termed a “Mäori customary marriage” no formality whatsoever is required, the parties simply living together, and if they tire of each other they separate without formality and enter into fresh relations with others, and that which, if the marriage were a legal one, would be termed polygamy is recognised. These unions are recognised by the Native Land Courts and are sufficient for the purposes of succession to the estates of Mäoris and half-castes, whether the estate consists of land or personal property, and whether the land is customary or freehold. No such union or customary marriage, however, is valid for any other purpose: (In re Wi Tamahau Mahupuku (Deceased), Thompson v Mahupuku [1932] NZLR 1397, 1399).
68 According to Heuer in Mäori Women, customary recognition of marriage took many different forms depending on iwi or hapü, or on the social status of the couple. Generally, where one or other of the partners was from an ariki line, and especially where the marriage would effectively strengthen links between different iwi or hapü, there was formal ceremony, and consummation of the marriage occurred when the couple slept together. For others, recognition of the marriage occurred upon public discovery and acceptance of a couple’s sleeping together.
69 Divorce according to Mäori custom was neither complex nor carried any stigma (Mikaere 1994; Binney 1996, 180–181). In English law, however, until the Matrimonial Causes Act 1857 only Parliament or death could put an end to marriage (Graveson and Crane, 5). To obtain a divorce required long, complicated, undignified and expensive proceedings, curtly described by the Lord Chancellor in moving the second reading of the Divorce and Matrimonial Causes Bill on May 20 1856 as “a clumsy expedient – to give it no worse name” (Graveson and Crane, 6).
70 In English law (to use the words of Lord Lyndhurst, speaking on the second reading of the Matrimonial Causes Bill on May 20 1856) a divorced woman who managed to obtain a decree of divorce on the ground of her husband’s cruelty or adultery found herself
. . . almost in a state of outlawry. She may not enter into a contract or, if she do, she has no means of enforcing it. The law, so far from protecting, oppresses her. She is homeless, helpless, hopeless and almost destitute of civil rights. She is liable to all manner of injustice, whether by plot or by violence. She may be wronged in all possible ways, and her character may be mercilessly defamed; yet she has no redress. . . . (Hansard, 3rd Series, vol 142, col 410)
71 Mäori began to internalise colonial values.6 Binney in “Some Observations on the Status of Mäori Women” has reproduced oral evidence from Heni Sunderland (born in 1916 a prominent woman of the Rongowhakaata tribe), who recalls her resistance to the introduction of chairs on the paepae of marae and their allocation to men only (Binney 1989, 28–29).
72 On national political matters, consistent with the position taken by Päkehä men, Mäori men resisted the franchise for Mäori women in the Mäori Parliament (Te Kotahitanga). However, in response, women such as Meri Mangakahia of Te Rarawa and Akenehi Tomoana petitioned for the right of Mäori women to vote in Te Kotahitanga – a right finally granted in 1897 (Rei 1993, 17–18; see also Ballara 1993, 127). There were many powerful women associated with Te Kotahitanga and they began the movement to organise collectively as women: Meri Mangakahia’s work would act as the “catalyst for the formation of Ngä Komiti Wahine – tribally based Mäori women’s committees . . .”; the committees held meetings to discuss “issues such as land, the general state of Mäori people and the political issues of the day” (Rei and Rangiheuea, Nga Ropu Wahine Maori: Maori Womens’ Organisations 1993, 4). The committees, known as village women’s committees, continued to operate on most marae until World War II, and eventually formed the nucleus of the Mäori Women’s Welfare League when it was established in 1951 to promote Mäori women’s and children’s health and welfare issues (Rei and Rangiheuea, Nga Ropu Wahine Maori: Maori Womens’ Organisations 1993, 9-10; see also Rogers and Simpson 1993, xii–xviii). Committees known as “komiti wahine” operated on marae in Northland in the 1950s and 1960s, though, no longer limited to women (Metge 1976, 137–138). Even today, in practice, the terms “komiti wahine” and “ladies’ committee” are heard, especially but not exclusively on the lips of the elderly.
73 The combined effect of land alienation and patriarchal law has been to place Mäori family forms and values under great stress (Durie-Hall and Metge 1992, 79).
74 The Native Land Court was established in 1862 by the Native Lands Act 1862, a little used Act which was superseded by the Native Lands Act 1865. From this time on, according to Ballara, customary “Mäori land tenure with regard to women was progressively undermined” (quoted in Hohepa and Williams 1996, para 98). Päkehä husbands challenged, unsuccessfully, s 22 of the Native Lands Act 1869 which provided:
It shall not be necessary for any married woman of the Native Race on executing any deed required by law to be acknowledged before Commissioners to make such acknowledgment and such deed shall be as valid as if signed by a feme sole.
75 There were Mäori women who resisted and protested against the Native land legislation (Rei 1993, 9; Coney 1993, 284–285). However, by 1873, s 86 had been amended to require that husbands be a party to any deed executed by married Mäori women. Husbands on the other hand were free to dispose of the interests in land of their Mäori wives without the requirement that the wife be a party to the deed. Furthermore, Native Land legislation moved land ownership into individual (and usually male) ownership rather than guardianship, again eroding Mäori women’s control. Mäori men also challenged womens’ rights to make decisions over the land, for example, Waitokitoki 3 and 4 Blocks Waiariki Appeal, MB 310 (1981), the (unsuccessful) challenge to the court’s appointment of five women trustees.
76 Land alienation had profound effects on Mäori society, and in particular Mäori women, as it destroyed the collective whänau/hapü unit. That the whänau/hapü unit was given less importance undermined the values that maintained its well-being. The erosion of those values – family and tribal history, language skills, mutual caring and support – eroded the importance of the roles and of the women who traditionally performed them.
77 Legislation in New Zealand has undermined the value accorded to Mäori women as nurturers and organisers of whänau and in so doing has undermined the importance of the relationships which have traditionally been extremely significant. For example, marriage according to custom did not mean for a Mäori woman that she was transferred like a piece of property from her father to her spouse; nor did marriage affect her status. A woman remained a part of her own whänau even if she chose to live with her spouse’s whänau and allow her in-laws to take responsibility for her well-being and support (Mikaere 1994, 125-149).
78 The English Laws Act of 1858 provided and declared:
That the laws of England as existing on the 14th day of January, 1840, shall so far as applicable to the circumstances of the colony, be deemed and taken to have been in force therein as, and after that day, and shall continue to be therein applied in the administration of justice accordingly.
Thus, Mäori, to marry validly for any purpose other than succession to property, had to marry either in accordance with the full requirements of the Marriage Act 1908 or in the presence of a clergyman of the Church of England or the Roman Catholic Church: see Rira Peti v Ngarahi te Paku (1888) 7 NZLR 235; Rex v Wairemu Kingi (1909) 12 GLR 175; In re Wi Tamahau Mahupuku (Deceased), Thompson v Mahupuku [1932] NZLR 1397.
79 Successive marriage laws required Mäori to conform more and more closely to the legal requirements for establishing marriage until customary marriages were eliminated. Section 8(1) of the Mäori Purposes Act 1951 and s 78 of the Mäori Affairs Act 1953 both provided:
Every marriage to which a Mäori is a party shall be celebrated in the same manner, and its validity shall be determined by the same law, as if each of the parties was a European; and all provisions of the Marriage Act 1908 shall apply accordingly.
Section 79 of the Mäori Affairs Act 1953 further stated:
(1) No marriage in accordance with Mäori custom that has been entered into on or after the 1st day of April 1952 shall be regarded as being a valid marriage for any purpose;
(2) Except as is expressly provided by this Act, no marriage in accordance with Mäori custom that has been entered into before the 1st day of April 1952 shall be regarded as being a valid marriage for any purpose.
80 The combined effect of these Acts and the Marriage Act 1955 was that no Mäori customary marriage could be considered valid for any purpose. Legal marriage imposed a legal relationship upon couples which took priority over all other relationships, including those with parents and siblings (Durie-Hall and Metge 1992, 60).
81 Adoption is a legal process which transfers the legal status of parent to a particular child from one set of parents to another. Mäori, however, place a positive value on the process of “atawhai” (show kindness to, be liberal, foster) adoption and the status of all parties involved. As one Mäori woman put it “an atawhai, though not born of my womb is born of my heart” (Metge 1995, 213).
82 Referring to the Adoption of Children Act 1895, Lord Phillimore in Hineiti Rirerire Arani v Public Trustee, recognising the Mäori customary law of adoption, stated:
The right of the Mäori to adopt according to his own custom is not interfered with by giving him a further right to adopt in the form and under the conditions provided by the Act. ((1919) NZPCC 1)
83 However, the Adoption Act 1955 deems that, since the commencement of the Native Land Act 1909, no person shall have been capable of adopting a child in accordance with Mäori custom and with certain exceptions, no adoption is of any force or effect, whether in respect of intestate succession to Mäori land or otherwise: s 19(1); (see also Whittaker v Mäori Land Court [1996] NZFLR 163). The fundamental difference in the way which the law, on the one hand, and Mäori, on the other, regarded adoption was that the law’s adoption policy focused on the relationships which were created and the perceived advantages for members of the new family. No attention was given to the relationship between child and birth parent which was destroyed and the impact upon the child (Griffith 1996, para 9).
84 The Guardianship Act 1968 s 2 defines guardianship as “the custody of the child . . . and the right of control over the upbringing of the child”, and custody as “the right to possession and care of a child”. Under the Act, the only guardians as of right are the birth mother and the birth father if living with the mother at the time of the birth. It is inconsistent with Mäori ideology, however, that a child be seen as the possession of parents. Children are seen rather as “a tätou tamariki” and are taonga of the whänau, hapü and iwi (Durie-Hall and Metge 1992, 54–82).
85 The family law statutes enacted since 1950 reflect the assimilationist policies of the period “largely by ignoring Mäori social policies and objectives, as if they did not exist”. Legislation such as the Marriage Act 1955, the Adoption Act 1955 and the Guardianship Act 1968 have all directly or indirectly ignored Mäori values relating to the structure and constitution of the family. (Durie-Hall and Metge 1992, 54 and 59)
86 Notwithstanding the fact that statutes such as the Guardianship Act 1968, the Matrimonial Property Act 1976, and the Adoption Act 1955 do not expressly recognise Mäori values, judicial cognisance and application of those values has continued to grow, with some judges exercising powers in a way that tries to meet Mäori concerns.
87 A recent example where a combination of Treaty principles and the principles espoused by the Draft Declaration on the Rights of Indigenous Peoples can be seen to have been influential is B v Director-General of Social Welfare (HC, Wellington, 27 May 1997, AP 71/96). In hearing an appeal by a grandmother against a decision of the Family Court refusing her custody of her granddaughter the court held that:
The welfare of the child can never be considered in isolation. The cultural background of a child is significant and the special position of a child within a Mäori whänau, importing as it does not only cultural concepts but also concepts which are spiritual and which relate to the ancestral relationships and position of the child, must be kept in the forefront of the mind of those persons charged with the obligation of making decisions as to the future of the child. (13)
88 What the case shows is that, sometimes even in the absence of express statutory directions to do so, Mäori values are being taken into consideration by the courts. The Law Commission’s forthcoming paper on Mäori customary law will address some underlying values and significant concepts of tikanga Mäori which affect major areas of law and policy.7 It will be addressed to judges, decision makers and policy makers who are responsible for shaping the future of New Zealand law.
89 Te Ture Whenua Mäori Act 1993 is based on customary Mäori attitudes to land and its importance for future generations. That Act affords hapü affiliation a relevance not contained in earlier statutes and makes no distinction as to gender in relation to succession or ownership of Mäori land. This customary approach is reinforced by the exemption of “Mäori land” from the provsions of the Matrimonial Property Act 1976 under s 6 of that Act, in that “Mäori land” can not be viewed as only the property of the parties.
90 A number of other statutes contain provisions which specifically address Mäori interests or require the recognition of cultural institutions and processes. The Mäori Community Development Act 1962 provides for Mäori wardens to exercise control over other Mäori and to perform minor policing roles, while the Criminal Justice Act 1985 recognises cultural values, for instance in sentencing: s 16. The Children, Young Persons, and Their Families Act 1989 requires social workers to recognise tribal arrangements and Mäori family relationships, especially those of whänau. That Act’s philosophy rests on the assumption that children are best raised within their own cultural context and with their own people. It allows tribal elders to take active leadership roles in family group discussions and requires professional workers to observe – or at least not to ignore – cultural preferences and custom.
91 The Resource Management Act 1991 obliges those exercising functions and powers under the Act to have particular regard to Mäori cultural and environmental values through the concept of kaitiakitanga: s 7. The Act specifies the “relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga” as one of five matters of national importance: s 6.
92 In the health sector, the Mental Health (Compulsory Assessment and Treatment) Act 1992 recognises the significance of a Mäori cultural identity. Section 5, reinforced by s 65, requires that any court or tribunal which exercises power under the Act must have respect for a patient’s cultural and ethnic identity, language, and religious or ethical beliefs. They must also show proper recognition of the importance to the patient’s well-being of family ties, as well as whänau, hapü, and iwi. The Mental Health (Compulsory Assessment and Treatment) Amendment Bill currently before Parliament proposes to substitute a new s 5. Under the proposed new section, any court, tribunal or person exercising power under the Act must:
93 The examples of statutes and judicial decisions which make reference to Mäori cultural values do not indicate that Mäori cultural identity is now secure, or that there is consensus about the place of a Mäori dimension in the New Zealand legal system. Still less should these examples be seen as indicating that there is a widespread understanding amongst lawyers, judges and the public of the specific provisions, or that their application has been fully explored. But they do perhaps contain the seeds of an evolving jurisprudence which draws on both British law and Mäori custom law and has the potential to incorporate solutions based on Mäori world views.
94 In the next chapter we show why the disregard of Mäori values and ineffective services in the justice sector leads Mäori women to perceive the justice sector accords them little or no value.
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