New Zealand Law Commission
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39 TIKANGA LIES AT THE HEART OF MäORI SOCIETY, is unique to
each iwi, and is dynamic. As Professor Hirini Mead has said:
There are some citizens who go so far as to say that tikanga Mäori should remain in the pre-Treaty era and stay there. To them tikanga Mäori has no relevance in the lives of contemporary Mäori. That body of knowledge belongs to the not so noble past of the Mäori. Individuals who think this way really have no understanding of what tikanga are and the role tikanga have in our ceremonial and in our daily lives. It is true, however, that tikanga are linked to the past and that is one of the reasons why they are valued so highly by the people. They do link us to the ancestors, to their knowledge base and to their wisdom. What we have today is a rich heritage that requires nurturing, awakening sometimes, adapting to our world and developing for the next generations.
40 Tikanga can be seen in its most overt form on the various marae of Aotearoa/New Zealand. However, tikanga is a pervasive influence, and marae are not the only places where tikanga plays an important role for Mäori.
41 Anecdotal evidence suggests that, even where detailed legal rules have been laid down (for example, in trust orders made by the Mäori Land Court), kin groups do not always expect the rules to be followed closely. The “rules” are seen more as “guidelines”. Chief Judge Williams remarks:
The reality in my experience is that people who are kin group members appearing before the Court do not by and large take much notice of the enforced assimilation of the statute. They come to Court, if they are in conflict, armed with the tikanga-based arguments which support their position. Trustees are appointed to administer lands not for their skills, but for their seniority within the leading families. The view of kaumätua will take priority whatever the shareholding of those individuals, and sometimes whether or not those individuals own shares at all. Whatever the strict legal rights of beneficial owners as tenants in common of undivided interests in Mäori freehold land, the imperatives facing the wider kin group will often
prevail in a manner directly contrary to ordinary rules of entitlement according to good principles of equity. The will of non-owners will sometimes prevail. Judges will always find a way to defer to tikanga unless the statute and the tikanga are in direct conflict and even then there is often room for creativity, and sometimes that
option is taken up.
NGA UARA O NGA TIKANGA: THE VALUES UNDERPINNING TIKANGA
42 In Mäori Custom and Values in New Zealand Law, the Law Commission summarised the central values that underpin the totality of tikanga Mäori, as:
• whanaungatanga – primarily this denotes the relationships between people bonded by blood, and the rights and obligations that follow from the individuals place in the collective group.
• mana – encompasses political power, as well as authority, control, influence and prestige.
• tapu – seen as part of a code for social conduct based upon keeping safe and avoiding risk, as well as protecting the sanctity of revered persons and traditional values.
• utu – relates to the concept of reciprocity in order to maintain relationships between people.
• kaitiakitanga – relates to the notion of stewardship and protection, often used in relation to natural resources.
Each tribal grouping will have its own variation of these and have different ideas on the values that inform tikanga Mäori.
43 In addition, the constitution of a settlement entity would need to take account of tikanga tangata (social organisation) tikanga rangatira (leadership) and tikanga whenua (connections to the land).
44 As Judith Binney pointed out:
Mäori had a legal system based upon well-established custom, concepts of collective responsibility and the resolution of disputes through compensation.
45 These principles of collective responsibility underpin the rules that deal with the holding or use of assets by one group of people on behalf of another. By way of example, there are these whakataukï:
• “He waka eke noa” – “A canoe on which everyone can embark”.
• “Ma pango mä whero ka oti te mahi” – “By red and by black the work is finished”. The red refers to the mixture of shark oil and red ochre (kököwai) which was smeared on a chief. By contrast the rank and file workers appeared black. The saying means that only by the united labour of chiefs and their followers can the task be accomplished.
46 Other whakataukï reflect the behaviour required to give proper effect to the principle of collective responsibility through other means:
• “He tanga kakaho koia kitea e te kanohi, tena ko te kokanga ngäkau e kore e kitea” – “If the layers of reeds in the roof of a house do not lie parallel to the rafters the eye can see the crookedness; but the recesses of the human heart you cannot see.” This whakataukï expresses the sentiments that lie behind the principle of transparency.
• “Ko te tumu herenga waka” – “The stump to which the canoe is tied.” This metaphor portrays the influence and reliability of a notable chief: it expresses sentiments similar to the duties of stewardship owed by persons who manage things on behalf of others.
47 A further example of a whakataukï, that deals with dispute resolution, albeit specific to Ngati Maniapoto, is:
• “Haere mai haere mai ki te marae o Hine”
“Welcome welcome to the marae of Hine!”
The Chief Maniapoto had forbidden any conflict on his daughter Hine’s marae. Consequently, the term “Hine’s marae” became a metaphor for mutual ground where peace is made and kept.
48 Whakataukï could readily form part of any governing constitution, as illustrative of the values with which the settlement group wishes to imbue the entity.
Limiting factors in the process
49 Tikanga Mäori needs to be central to any process that governs and manages settlements, but the current regime imposes two limiting factors.
50 The first is the criteria laid down by the Crown (and similarly Te Ohu Kai Moana (TOKM)) that must be complied with in order for the settlement group to receive assets. Not all criteria are compatible with tikanga.
51 Secondly, while the Crown is relatively flexible in its approach to the choice of legal entity made by the settlement group, expression of tikanga is limited by the types of entity available. Most entities were created without Mäori values in mind. They instead derive from English law.
Entitlement to benefits
52 According to tikanga, benefits usually accrue through whakapapa and mana. Mana can be both conferred by whakapapa (where the individual is defined in terms of their blood relationship with others), and could be earned through participation in, and contribution to, the group.
53 Today, group entitlements to the benefits of Treaty settlements are generally determined by whakapapa alone. While traditionally, for Mäori, involvement in, and contribution to, society were paramount to issues of entitlement, today’s reality is that only whakapapa can be the basis for inclusion in the settlement group. This is especially so where the alienation of Mäori from their tribal groups has been the result of past Crown actions.
54 What is critical is that the benefits of settlement need to be made available to all those whose tipuna were affected by breaches of the Treaty, so that the kin group as a whole is able to exercise te tino rangatiratanga. Any exclusion of those Mäori alienated from their tribal roots could possibly expose the Crown to further legal risk, frustrating the goal of full and final settlement.
55 Mäori decision-making processes are not easily turned into detailed rules of a type with which Päkehä (or their law) are familiar. Decision making by Mäori, certainly on the marae, is still linked to mana. It is not necessarily what is said that will sway the day; those present will also place great emphasis on who says what. To understand how a decision has been made on a marae, one must understand the particular community and the mana of the individuals who spoke.
56 Traditionally, Mäori dispute resolution has taken place primarily on the marae, with emphasis as much on the process as on the outcome. In Korero Tahi: Talking Together, Dame Joan Metge explains that:
Mäori collectively see the marae as the appropriate venue for debating issues of all kinds, especially at family and community level. Discussion is an integral part of every gathering held on a marae, whether the community is meeting on its own or entertaining visitors, and whatever the publicly announced reason for coming together. When Mäori meet for discussion in other places, they transform them into the likeness of a marae by their use of space and application of marae rules of debate ...
The rules for discussion in Mäori settings [nga tikanga koreroreo] are not hard-and-fast directives (though the inexperienced are tempted to treat them as such) but flexible guidelines that both encourage and require modification according to the circumstances. In particular, they are modified according to whether the gathering is held on or off a marae complex, whether visitors are present or not and whether those visitors are kin or strangers. Like all tikanga Mäori, they are grounded in basic Mäori values, laying particular emphasis on respect for the spiritual dimension (expressed in karakia and the observance of tapu), ancestral connections (expressed in whakapapa and whanaungatanga), attachment to the land (whenua) generosity (aroha) and care for others (manaaki ki te tangata) peace (rangimarie) and unity (kotahitanga) they are neither set out as a code nor formally taught, they are absorbed by watching and doing.
57 Emphasis is placed on achieving consensus through a unified, collective agreement. Consensus is achieved through a process that demands goodwill, patience, and freedom from time constraints.
58 According to Thomas and Quince, any modern system of Mäori dispute resolution needs to reflect that, and to include the following features:
(1) Community input and responsibility – the Mäori community must own the processes by which conflicts amongst its members are resolved, with the participants needing to have input into defining the system and its outcomes.
(2) Reciprocity and balance – the aim of dispute resolution must be to restore participants or disputants to their communities. Once decisions are made, with individual and community input, all parties must work together to implement the decisions.
(3) Process – the principle of kotahitanga (inclusiveness) in participation and accountability will underpin any process of Mäori dispute resolution. It is important to note that Mäori place much value on the process itself, as distinct from its outcomes. The process itself is seen as an inherent good, because it empowers the parties and community to take responsibility for the future.
(4) Appropriate forms and structures – both the physical environment and the forum must reflect Mäori principles. In traditional Mäori society the marae fulfilled this function and in modern society it remains the most appropriate environment, for reasons which have stood the test of time.
(5) Te Reo Mäori – less than 20% of Mäori now speak te reo fluently. This reality will almost certainly require that the English language be used if inclusion of all parties is to be achieved.
(6) Representation and leadership – it is fundamental to the resolution of any dispute, particularly with respect to enforceability and acceptability of any outcome, that those with grievances be properly represented and that those who lead are properly mandated by their constituency.
59 There are inevitable tensions between tikanga and the current process. However, there is also a significant degree of commonality with New Zealand domestic law. Ultimately, a balancing of the two will provide a more equitable process, and, it is hoped, durable outcomes.