1 ehara te toka i a Kiha, he toka whitianga ra, a, ka pa taaua ko te

1
ehara te toka i a Kiha,
he toka whitianga ra,
a, ka pa taaua ko te toka i Mapuna
tena taau e titiro ai ko te ripo kau
liken me not to the rock Kiha
on which the sun constantly shines
but liken me instead
to the rock Mapuna
viewed only by the swirling tides
Na te Tupuna Tarutaru
2
NGA MIHI KI NGA KAI TAUTOKO O TENEI TUHITUHINGA
Acknowledgments
Ka nui aku mihi ki a koutou katoa e tautoko mai ana i ahau i te wa tino roa e mahi ana
ahau i tenei mahi.
I thank the many people who have supported me in the long time that it has taken to
complete this work.
Greatest thanks must go to my own people – Dr Cleve Barlow of Ngapuhi, who has
guided me through this entire process from start to finish – Marara Hook of Ngai ta Wake
ki te Moana, who patiently translated the texts used in this study – and Waerete Norman
and Rehi Rihari (both deceased), whose lives epitomise the struggle of Maori women to
gain academic recognition and the determination required to achieve success.
I also wish to thank the Faculty of Law for letting me take so long to complete this work,
and, more especially, the succession of supervisors that I have worn out in the process.
This has not been an easy study for Maori academics to advise on – how much more
difficult it must have been for Pakeha supervisors. Special thanks must go to Dr David
Williams as the sole Pakeha survivor, whose encouragement and guidance throughout the
process and up until completion has remained steadfast, to Dr Kenneth Palmer for always
being available and supportive when I have needed him and to Dr Charles Rickett for
being willing to give it a go!
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TE WAAHI TAKE O TE MAHI NEI
Abstract
In this study I seek to uncover and analyse the concepts that, as jural principles, formed
the basis of Maori custom law in the past, and to compare their application in a modern
context. As such, this study is both historical – a glimpse of the past – and contemporary
– an indicator of changes that have occurred and of potential future directions.
The historical aspect of the study focuses mainly on the Papatupu Block hearings that
took place in the mid Tai Tokerau region in the early 20th Century. It draws information
from a number of Maori texts that have not been critically analysed before. The purpose
of the hearings was to facilitate the transmission of Maori land tenure from “collective
title” held under Maori custom law, to an English-based land tenure system of
“individualised title” that could be more easily understood and controlled by the newly
imposed English Parliamentary processes and legal system. This information is
supplemented by Native Land Court hearings from the same area. The contemporary
aspect focuses on two more recent attempts by Maori to assert custom law within the
same general area, within a New Zealand legal framework. It draws on material gathered
for the Waitangi Tribunal claim to hapu ownership of the Ngawha geothermal resource in
1992-1993, and evidence presented in hearings for the granting of resource consent to
build a prison at Ngawha, in 2001-2002.
Section A establishes the ambit of the study. I introduce myself as the writer and
establish my whakapapa connections to the area and people whose information forms the
main part of the study. This is an essential step in establishing my turangawaewae
(standing) to speak about the area and people covered by this study. I also set out the title
and intended scope of the study, its boundaries and limitations, and why I believe there is
a need for academic research into tikanga Maori (Maori custom law) today.
4
Section B looks at a Maori worldview as the cultural source from which Maori custom
law is drawn. It establishes the theoretical framework for the analysis that is to follow.
Importantly, Section B provides a discussion of the key concepts that, as working
principles, are to be examined in later sections. The purpose of Section B is to provide an
understanding of the basic concepts of Maori custom law that will be discussed in
Sections C and D.
Section C forms the main part of this study. In this Section I extract the key jural
concepts and principles identified by kai korero (speakers) during the Papatupu Block
hearings and Native Land Court hearings, and measure them against the framework set
out in Section B, in order to demonstrate how they were used to regulate Maori
relationships on the land.
In Section D, I examine the modern application of the key principles examined in Section
C, by examining evidence provided by local Maori in two recent hearings. The first is
the Ngawha Geothermal Claim heard by the Waitangi Tribunal in 1992-1993. The
second is the resource consent applications for the building of Ngawha Prison, heard by
the Northland Regional Council and later successfully appealed to the Environment Court
in 2002, and upheld by the High Court and Court of Appeal. The purpose of this Section
is to identify the changes that have occurred in the application of fundamental Maori
custom law principles in the past 100 years.
Section E concludes that the application of the key principles of Maori custom law has
altered over time to reflect changes in the material circumstances of Maori living within
the area. Some important principles have fallen into disuse. Others have been extended
to reflect modern Maori needs and external trends in the New Zealand legal system.
Some of the values that underpin the key foundational principles have also altered. I
believe that Maori must develop a more systematic and universal approach to tikanga if it
is to survive as more than a rudimentary, tokenistic form of regulating peoples' actions
and relationships to resources, into the future.
5
The purpose of this study is to trace the development of Maori custom law in a small part
of Aotearoa/New Zealand. The relationship of this system to the English-based New
Zealand legal system introduced in 1840 is not a prime focus of this study. However,
because the presence of the New Zealand legal system continues to affect the way Maori
custom law has and will develop, it is included as part of Sections A and Section D.
6
NGA TUHITUHI KEI ROTO
– Contents
NGA MIHI KI NGA KAI TAUTOKO O TENEI TUHITUHINGA
– Acknowledgments ...........................................................................................................2
TE WAAHI TAKE O TE MAHI NEI
– Abstract........................................................................................................................ 3-5
NGA TUHITUHI KEI ROTO
– Contents ..................................................................................................................... 6-15
WAHANGA TUATAHI – SECTION A
HE KORERO TIMATANGA – INTRODUCTION.....................................................16
1.
2.
TE KAI TUHITUHI – THE WRITER
(a)
Ko Wai Te Kai Tuhituhi?.......................................................................... 17
(b)
Who Is The Writer? ...................................................................................18
TAKU ROHE TIROTIRO – THE AREA OF MY STUDY
(a)
The Scope Of My Study.............................................................................19
(i)
Title...................................................................................................19
(ii)
Thesis ................................................................................................19
(iii) Developing My Thesis Into A Study ................................................19
(iv) Research Archive Used.....................................................................21
(b)
Delimitations Of The Study
(i)
Author’s Position ..............................................................................26
(ii)
The Nature Of The Study And The Geographical
Region Covered.......................................................................27
(iii) Limited Availability Of Written Information About
Tikanga Maori / Maori Custom Law ................................................28
(iv) Use Of Te Reo – Oral Traditions......................................................29
(v)
Use Of Te Reo – Written Works ......................................................31
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(vi) Translating Maori Concepts Into English Language...............32
3.
HEI AHA TENEI MAHI? – WHY THERE IS A NEED FOR THIS
STUDY
(a)
Introduction ................................................................................................33
(b)
Abstract Thinking As A Fundamental Requirement of
Maori Custom Law ....................................................................................35
(c)
Need For Research To Support The Work Of The Maori Land Court
And The Waitangi Tribunal .......................................................................40
(i)
The Call For Research Into Maori Custom Law ............................40
(ii)
The New Zealand Law Commission “Maori Custom And Values In
New Zealand Law” Paper...............................................................43
a.
The Ability Of Maori Custom Law To Change Over
Time....................................................................................44
b.
Aligning Maori Custom Law With The English Common
Law System Introduced Into Aotearoa In 1840..................46
(iii)
Conclusion......................................................................................47
WAHANGA TUARUA – SECTION B
TE KAUPAPA O TE MAHI – A MAORI CONCEPTUAL FRAMEWORK ...........49
1.
TIMATANGA – INTRODUCTION AND STRUCTURE OF SECTION B
2.
TE AO MAORI – A MAORI WORLD VIEW
3.
(a)
Introduction ................................................................................................52
(b)
Wairua – Maori Reality..............................................................................53
(c)
The Importance Of The Creation Stories ...................................................60
(d)
Nga Kete Tuatoru – The Three Baskets of Knowledge .............................61
(e)
Conclusion..................................................................................................66
KEY CONCEPTS / PRINCIPLES UPHOLDING A MAORI WORLD VIEW
(a)
Introduction ................................................................................................67
(b)
WHAKAPAPA ..........................................................................................68
(i)
Whakapapa As A Process...............................................................69
8
(c)
(ii)
Whakapapa As A Vehicle For Conveying Wairua.........................71
(iii)
Whakapapa as A Hierarchical Process Of Authority .....................73
(iv)
Conclusion......................................................................................75
WHANAUNGATANGA
(i)
Introduction ....................................................................................77
(ii)
Whanaungatanga As A Concept Highlighting Relatedness ...........77
(iii)
Whanaungatanga As A Principle Of “Inclusion”...........................78
(iv)
Whanaungatanga As A Principle Highlighting Moral
Responsibilities ..............................................................................79
a.
b.
(d)
(e)
i.
Papatuanuku – Aroha..............................................79
ii.
Group Identity – Whanau, Hapu And Iwi...............80
iii.
Relationship To Natural Resources ........................81
Utu – Reciprocity................................................................81
MAURI
(i)
Introduction ....................................................................................83
(ii)
What is Mauri? ...............................................................................83
(iii)
What Is the Job/Purpose of Mauri? ................................................85
(iv)
Why Does Mauri Need Protection?................................................86
(v)
Conclusion......................................................................................88
MANA
(i)
Introduction ....................................................................................89
(ii)
The Double Aspect of Mana As “Power” and “Authority” ...........89
(iii)
Sources of Mana Recognised By Maori Society
(iv)
(f)
Family Relationships
TAPU
a.
Mana Wairua ......................................................................90
b.
Mana Atua ..........................................................................90
c.
Mana Tupuna ......................................................................91
d.
Mana Whenua.....................................................................91
e.
Mana Tangata .....................................................................92
Conclusion......................................................................................95
9
4.
(i)
Introduction ....................................................................................96
(ii)
What is Tapu?.................................................................................96
a.
Inherent Tapu......................................................................97
b.
Imposed State Of Tapu .......................................................98
(iii)
Rahui ..............................................................................................99
(iv)
Tapu Nature Of Knowledge .........................................................100
(v)
Conclusion....................................................................................102
CONCLUSION TO SECTION B .....................................................................103
WAHANGA TUATORU – SECTION C
WHAKAPAPA, WHANAUNGATANGA, MANA ME TAPU – MAORI
CUSTOM LAW IN THE 19TH CENTURY AND EARLIER ....................................105
1.
INTRODUCTION..............................................................................................106
2.
WHAKAPAPA
(a)
Introduction ..............................................................................................111
(b)
Four Tenets of Maori Custom Law Relating to Whakapapa
(i)
Whakapapa – Links To Important Ancestors – Ngapuhi
Whakapapa...................................................................................111
(c)
(ii)
Whakapapa – Links To Specific Areas ........................................113
(iii)
Whakapapa – Links Through Significant Events.........................114
(iv)
Whakapapa – Maintaining Inter-generational Links....................115
Establishing Whakapapa Entitlements To The Lands Under Claim
(i)
Senior Whakapapa And The Right To Speak On Behalf
Of Others ......................................................................................117
(ii)
(d)
Senior Whakapapa And Territorial Authority..............................119
a.
East Coast Claims .............................................................120
b.
West Coast, Hokianga Claims ..........................................123
Women With Senior Whakapapa Lines Exercising Authority ................126
(i)
Kohinemataroa .............................................................................127
(ii)
Taimihitata....................................................................................128
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(iii)
Ruapounamu.................................................................................129
(iv)
Ngakahuwhero..............................................................................129
(v)
Patu Wahine .................................................................................131
(vi)
Men Living Under The Authority Of Women Of Senior
Lineage .........................................................................................132
(e)
3.
Conclusion................................................................................................133
WHANAUNGATANGA
(a)
Introduction ..............................................................................................135
(b)
The Importance Of Kinship Links
(c)
(i)
Kinship Links And Group Identity...............................................136
(ii)
Naming Of Groups
a.
Augmentation Over Time .................................................138
b.
Specific Events .................................................................140
The Principle Of Aroha – Benevolence Toward Kin
(i)
The Sharing Of Authority And Leadership Within A Group –
Teina/Tuakana And Tupuna/Matua status ...................................141
(ii)
The Duty Of Rangatira To Atawhai Kin Under
Their Authority.............................................................................146
(d)
(iii)
Tuku As A Vehicle For The Duty To Atawhai ............................152
(iv)
Conclusion....................................................................................155
The Principle Of Utu – Sanctions And Reprisals For Wrongs Against Kin
(i)
(ii)
Categories Of Offences Committed
a.
Breach Of Rahui ...............................................................156
b.
Theft..................................................................................157
c.
Causing The Death Of A Relative ....................................158
Liability Settled By Physical Combat – Seeking Utu .................161
a.
Pakanga Rangatira ............................................................163
i.
The Role of the Peacemaker .................................164
b.
Patu Aware .......................................................................166
c.
Cannibalism – Custom Law Eating Practices...................168
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(e)
4.
Conclusion................................................................................................169
MANA
(a)
Introduction ..............................................................................................171
(b)
Mana Tangata – Mana Of Individuals On The Land ...............................173
(i)
Introduction –– Whakapapa, Status And Individual Mana ..........174
(ii)
Rangatira.......................................................................................174
a.
Mana Rangatira.................................................................175
(iii)
Tohunga........................................................................................178
(iv)
Kaumatua/Kuia.............................................................................180
(v)
Warriors........................................................................................183
(vi)
Gardeners......................................................................................185
(vii)
Pononga ........................................................................................186
(viii) Conclusion....................................................................................187
(c)
(d)
Mana Tupuna
(i)
Introduction ..................................................................................189
(ii)
Hokianga Hearings .......................................................................189
(iii)
Waireia Native Land Court Hearing 1913....................................190
(iv)
East Coast Papatupu And Native Land Court Hearings...............194
(v)
Conclusion....................................................................................195
Mana Whenua – Mana And Territory
(i)
Introduction ..................................................................................196
(ii)
Huaina Whenua – Naming The Land...........................................197
(iii)
Tuku Whenua – Granting Property Entitlements To Others ........199
a.
Temporary Tuku When Leaving Territory .......................200
b.
Tuku Whenua Within Settled Territorial Boundaries
i.
Granting Of “Tuku” Title .....................................203
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ii.
Tuku Made To Individuals For Whanau And For
The Community ...................................................205
c.
Tuku – Personal To The Grantee And Their Uri..............207
d.
Duration Of Tuku .............................................................209
e.
Type Of Title Held
i.
Tuturu Entitlement................................................210
ii.
Aroha Title ..............................................................212
f.
Residence/Occupation As Proof Of Title .........................216
g.
Challenges To “Mana Rangatira” – The Advent Of New
Opportunities For Trade – Timber Cutting At Hokianga
And Waireia .....................................................................218
h.
(iv)
Conclusion ........................................................................226
Raupatu As A Means Of Acquiring Territory
a.
Introduction ......................................................................228
b.
Okuratupe, Waimate Papatupu Hearings..........................229
c.
Te Tii, Mangonui, Waimahe Blocks ................................232
i.
(e)
5.
Tuku By Auha .........................................................233
d.
Matawaia No. 1 Block 1904 .............................................235
e.
Conclusion 238
(v)
Setting Boundaries Between Group Territories ...........................239
(vi)
Retaining Territory – Ringa Kaha ................................................245
Conclusion................................................................................................249
TAPU
(a)
Introduction ..............................................................................................251
(b)
Tapu And The Formation Of Property Relationships
(i)
Extending Personal Tapu To Other Things –
Tapu And Mana Tangata ..............................................................252
a.
Extension Of Tapu To The Personal
Belongings Of Rangatira ..................................................253
b.
Extension Of Tapu To Things Touched By
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A Tohunga ........................................................................255
(ii)
c.
Tapu And Individually “owned” Food Resources............257
d.
Birth And Death Of A Rangatira ......................................258
Tapu Associated With Wahi Tapu Or Burial Grounds – Mana
Tupuna .........................................................................................264
(iv)
Tapu As An Administrative Device For Regulating Resource
Relationships
a.
Authority To Impose “tapu” States On Resources – Mana
Rangatira ..........................................................................269
b.
i.
Trees ........................................................................269
ii.
Huke Roi .................................................................270
iii.
Areas Of Sea ...........................................................271
Rahui And Territoriality – Tapu And Mana Working
Together ...........................................................................272
(c)
c.
Tapu Following Raupatu ..................................................275
d.
Wahi Tapu As A Source Of Land Entitlement.................276
e.
Removal Of Tapu .............................................................279
Conclusion ...................................................................................281
WAHANGA TUAWHA – SECTION D
TWO MODERN CASE STUDIES – NGAWHA GEOTHERMAL
HEARINGS 1992 AND NGAWHA PRISON HEARINGS 2002 ..............................283
1.
2.
INTRODUCTION AND BACKGROUND......................................................284
(a)
The Ngawha Geothermal Hearings ..........................................................286
(b)
The Ngawha Prison Hearings...................................................................288
WHAKAPAPA
(a)
Introduction ..............................................................................................290
(b)
Boundaries And Origins Of Ngapuhi Set Out..........................................291
(c)
Development of the Principle of Whakapapa
(i)
The Geothermal Claim .................................................................293
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(ii)
(d)
3.
The Prison Hearings .....................................................................297
Conclusion................................................................................................303
WHANAUNGATANGA
(a)
Introduction ..............................................................................................307
(b)
Changing Group Identity
(c)
(i)
The Geothermal Hearings.............................................................308
(ii)
The Prison Hearings .....................................................................311
Aroha/Atawhai .........................................................................................312
(i)
The Geothermal Hearings.............................................................313
(ii)
The Prison Hearings .....................................................................317
a.
The Ambit Of “Kaitiakitanga ...........................................317
b.
The Nature Of The Kaitiaki RelationshipPut Forward
By Ngati Rangi .................................................................320
4.
(d)
Utu............................................................................................................323
(e)
Conclusion................................................................................................324
MANA
(a)
Introduction ..............................................................................................326
(b)
The Statutory Framework Of The Geothermal And Prison Hearings......328
(c)
Ngawha Geothermal Claim......................................................................330
(d)
The Prison Hearings .................................................................................333
(i)
Whakapapa And Mana – The Exclusive Claim By Ngati Rangi ......
To Mana Whenua And Kaitiakitanga...........................................334
(ii)
5.
Ngapuhi Tikanga vs Bay Of Plenty Tikanga................................336
(e)
The Environment Court............................................................................340
(f)
Conclusion................................................................................................344
TAPU
(a)
Introduction ..............................................................................................346
(b)
The Geothermal Claim .............................................................................347
(c)
The Prison Hearings .................................................................................350
(d)
Conclusion................................................................................................354
WAHANGA TUARIMA – SECTION E .....................................................................356
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THESIS CONCLUSION ...............................................................................................356
APPENDICES
Appendix 1: The Treaty of Waitangi/Te Tiriti o Waitangi ...........................................367
MAPS
Area of Study – Wahanga Tuatahi – Section A.................................................................27
Tai Tokerau Region Covered In Wahanga Tuatoru – Section C .....................................106
Ngawha Geothermal Region Covered in Wahanga Tuawha – Section D .......................284
BIBLIOGRAPHY ..........................................................................................................371
GLOSSARY ...................................................................................................................379
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WAHANGA TUATAHI – SECTION A
HE KORERO TIMATANGA – INTRODUCTION
17
1.
(a)
TE KAI TUHITUHI
Ko wai te Kai Tuhituhi?
He uri ahau no Ngati Korokoro, no Te Hikutu, no Te Rarawa, no Ngati Kahu, Te Aupouri
me Taranaki hoki. E marara ana oku tupuna, ka huna ki roto i nga kohao rau o Te Tai
Tokerau, me etahi atu wahi. Ko toku tupuna papa, no Ngati Tarara. Ka pupuke rawa taku
whakapapa ka pa ki te ao whanui me te reo tawhiti.
Ka puta mai ahau, he kotiro, me te potiki, te pepi i karanga mai ai i taku mama i te
matenga o taku tuahine. I tupu ake ahau i Lake Ohia. Ka tukuna atu ki Marist Convent i
Akarana, i au e tamariki tonu ana. I muri i tena ka hou atu ki te kura o Kuini Wikitoria. I
muri i tena ka whai pepi ahau, he tamaiti –– na whai hoki i te matauranga e pa ana ki te
tangata me te ture i te Whare Wananga o Tamaki Makaurau. He mahita ahau i te Kura
Ture inaianei. Ahakoa ko te nuinga o taku mahi e pa ana ki te ture Pakeha e ahei ana ahau
ki te whai i te ture Maori hoki, penei me tenei.
Ki etahi Maori, na te mea he wahine ahau, horekau au i ahei ki te whai i nga tikanga e pa
ana ki te matauranga me te whakapapa o nga tupuna, penei i taku mahi, ma te taane hoki
anake. Horekau au e whakaae ki aua korero. Ko tenei mahi he mahi mo te hinengaro me
te wairua –– ehara tenei i te tino waahi pakanga kia whai mana ai te tane, kia wehe ai te
wahine, e ai ki o tatou tino tikanga no mua ake ra, kei raro ke, kei waenganui i nga huha o
te wahine.
E whai ake ahau i tenei mahi, i te mea, e whakaro ana ahau, mena e hiahia ana matou, te
iwi Maori, ki te kume i to matou rangatiratanga i tahaengia atu e te Tauiwi, ko te mea
tuatahi, titiro ki mua, tangohia nga mea tika no mua, mauria mai hei poutokomanawa kia
hangaia hei ture mo nga wa kei te haere mai, kia kaha ai tatou i tenei ao hou. Ehara ahau
i te wahine tino mohio, tino kaha mo enei momo take. Engari, ko tenei taku mahi iti, hei
koha mo koutou e haere ana i tenei haerenga nui mo a tatou nei iwi.
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(b)
Who is the Writer?
I am a descendant of Ngapuhi – Ngati Korokoro, Te Hikutu, Te Rarawa, Ngati Kahu,
Te Aupouri are my hapu. I also whakapapa to Taranaki. My Maori tupuna spread
out and hide inside the hundred holes of Te Tai Tokerau and other places. My
grandfather is Croatian from Tucepi. This adds another, completely new dimension
and language to my whakapapa framework of analysis.
I am the baby called for by my mother when my older sister died. I grew up in Lake
Ohia in the Far North. I was educated at Marist Convent and Queen Victoria School
in Auckland. After my son, Inia, was born, I attended Auckland University to study
Arts and Law. For the past 12 years I have taught in the Faculty of Law at Auckland
University. My teaching, although primarily English common law based, also
provides room for research into the subject of this study, Maori custom law.
I embarked on this study over 10 years ago because I believed that if we, as Maori,
were to reclaim our “self-determination”, “rangatiratanga”, “mana”, (or whatever
other name we might give to exercising greater authority over our lives), we had to
first go back and pick over the best and worst of our past. Then we could use that
knowledge to guide us into a future that was of our own crafting. I was not sure how
to do this in a western legal-academic institution that takes for granted the pervasive
application of its own concepts and principles, and whose purpose is to entrench those
principles into the minds of its students.
This study has been a journey of discovery for me – of dead ends, new directions, and
much discarding of information. What have I achieved as a result? I have not
become an expert in tikanga or te reo Maori. This seemingly endless process of
inquiry, evaluation and constant revision has made me aware of how very little I
know, or matter in the wider scheme of things. In the end, all I can say with certainty
is that the work is mine. I hope that it makes a small contribution toward the survival
19
and progress of my people, and New Zealand society generally. At the very least, I
hope that it provides a skeletal framework for others to pick over and build upon.
2.
TAKU ROHE TIROTIRO – THE AREA OF MY STUDY
(a)
The Scope of my Study
(i)
Title
The identification and use of key concepts/principles of Tikanga Maori (Maori Custom
Law) and their use as regulators of human relationships to natural resources in Tai
Tokerau past and present.
(ii)
Thesis
In this study, I posit that Whakapapa and Whanaungatanga provided the conceptual
framework within which Maori custom law operated as a system of law in Aotearoa/New
Zealand since the time of contact,1 and that Mana and Tapu were the principal
determinants of the content and operation of custom law. I further posit that these four
fundamental concepts gave rise to jural principles that have been developed over time to
suit the changing circumstances of Maori since the introduction of a second, Englishbased system of law after 1840. I believe that these principles need to be developed
further if Maori are to develop a modern system of Maori custom law capable of
sustaining Maori society into the future.
(iii)
Developing my Thesis into a Study
This study is framed as a series of narratives, which I have linked together in a way that
makes the information more easily accessible to readers whose main frame of reference is
1
Throughout this study I adopt the modern trend of naming the entire country “Aotearoa”, rather than using the
terms “Niu Tireni”, “Niu Tirene” or “tenei motu” as is often found in the early 20th Century Maori transcripts
referred to in Section C.
20
English language concepts. Although using English language instead of te reo Maori
detracts from the comfortable fit that Maori terms enjoy within their own language
context, many Maori and most non-Maori do not read te reo. Although it would be a lot
easier and more fluid to write this thesis using te reo Maori, in order for the study to be
accessible to a wider audience I have chosen to write in English. Thinking and writing
about one society using the language and assumptions of another society presented
difficulties for early Pakeha writers, and the way they thought is still reflected by some
modern writers. This is briefly discussed in Section A, as a personal motivator for
writing this thesis. More important though, is the need to provide research into tikanga
for the judges of the Maori Land Court and Waitangi Tribunal, who must deliberate
tikanga issues as part of their judicial roles.
In Section B, I set out the conceptual approach I will use in the study and the intellectual
framework within which further discussion will take place in later sections. The first part
of Section B focuses on the importance of Te Ao Wairua (the spiritual realm) as the basis
of the Maori worldview from which Maori custom law emerges. The Maori creation
stories exemplify the Whakapapa process for thinking about and organising all Maori
relationships. Nga Kete e Toru (the three baskets of knowledge) create divisions between
the different types of knowledge recognised by Maori. In this section I also flesh out the
concepts of Wairua, Whakapapa, Whanaungatanga, Mana, Tapu and Mauri, which I view
as being pivotal to understanding Maori custom law as a self-contained system of law.
Section C is the major part of this study. It focuses on information drawn from the
written records of Papatupu Hearings that took place after the Native Land Court was
established in 1862. These Hearings took place at the beginning of the 20th Century. The
material is recorded in te reo Maori. Much of it involves the narration of events that took
place before 1840. They are recollections of incidents that have been passed down by
successive tupuna (ancestor/s). Information about the role of women in the area is an
important part of this Section.
21
The Papaptupu hearings material has not previously been the subject of academic
research. In Section C, I examine the application of the key concepts of Whakapapa,
Whanaungatanga, Mana and Tapu as jural principles, against the framework set out in
Section B.
In Section D, I compare the key concepts and principles discussed in Sections B and C
with modern Maori usage. I examine the arguments used by Maori claimants when
asserting their right of ownership and control of the Ngawha geothermal resource before
the Waitangi Tribunal in 1992-1993. I also analyse the affidavit evidence provided by
Maori to the various statutory bodies responsible for hearing the applications for resource
consents necessary to build a prison at Ngawha. The purpose of this examination is to
demonstrate that changes have taken place in the hierarchy of importance and application
of the jural principles identified in Sections B and C.
(iv)
Research Archive
The main source of historical information drawn upon in this study is contained in
material recorded by the Papatupu Committees established to hear native land claims, and
other Native Land Court records at the beginning of the 20th Century.
The Maori Lands Administration Act 1900 established 6 Maori District Land Councils in
the North Island.2 Each District was to establish a Maori Land Council of 5 to 7
members.3 Each Council was presided over by a European judge of the Native Land
Court.4 These councils comprised 2/3 members appointed by the Governor, 1 of whom
2
3
4
Section 5 of the Maori Lands Administration Act 1900.
Ibid, section 6.
Ibid, section 6(1).
22
had to be Maori,5 and 2/3 Maori members elected from the land district.6 The District
Land Councils possessed all the powers and jurisdiction of the Native Land Court.7
The Papatupu Block Committees were established under the Maori Lands Administration
Act to assist the work of the District Land Councils. A District Land Council was able to
refer matters to a Block Committee for investigation and report, and to give effect to the
report provided if it so wished.8
Papatupu Block Committees consisted of 5-9 Maori members elected from within local
communities.9 Their task is set out in the Act as follows:
Section 17
The committee, having due regards to Maori customs and usages, shall make full investigation
into the ownership of the block, and, as the result of such investigation, shall cause a sketch-plan
of the block to be prepared … adopting hapu boundaries as far as practicable.
Section 18
The committee is to prepare a report setting forth:
1. Names of owners of a block – grouping families together, but specifying the name of each
member of each family
2. The relative share of the block to which each family member is entitled
3. The relative share to which each member of the family is entitled in such family’s share of the
block;
The conduct and processes of each Papatupu Block Committee was internally regulated
by the Committee.10 The usual procedure was to employ a kaiwhakahaere (conductor),
and kaikorero (speakers) to present testimony on behalf of whanau. Cross-examination
5
Ibid, section 6(2).
Ibid, section 6(3).
7
Ibid, section 6(9).
8
Ibid, sections 11-12.
9
Ibid, section 16(1).
10
Ibid, section16(4).
6
23
of those who presented evidence was permitted. Site visits were conducted whenever the
Committee deemed them necessary. Elder committees were established to sort out
matters of contention that arose between claimants and to facilitate agreement.
Proceedings were conducted totally in te reo Maori. According to Jane Mcrae, who
wrote her Masters thesis about the operation of Papatupu committees:11
… this inspired confidence being a correct and satisfying way of discussing topics central to Maori
thought and behaviour and of deep emotional attachment.
Mcrae notes the downside to this as being that knowledge previously discussed within the
intimacy of the marae:12
… lost much of its subtlety as it became relevant only to pronouncing “facts” and providing
information in a legally malleable form.
Another salient point is noted by Grant Young who says that from the mid-1880s
onwards, Maori giving evidence before the Native Land Court were not “the sons and
daughters of the great rangatira who had led their tribes” but “a landscape of voices”
asserting smaller kinship group rights within the same iwi territory.13
The voices may have multiplied but the beat-line remained the same. From the mid1800s onwards, Native Land Court processes and authority began to replace traditional
leadership processes of allocating entitlements to land within a given territory. This
being the case, applicants for title determinations may have become more adept at
tailoring their stories to fit what they believed the Court needed to hear for a successful
claim to result. Despite this, both the Papatupu hearings and the Native Land Court
11
J Mcrae, Participation: Native Committees (1883) and Papatupu Block Committees (1900) in Tai Tokerau, Thesis
submitted in partial fulfilment of the requirements for the degree of Master of Arts in Maori studies, University of
Auckland, 1981, 69.
12
Ibid at 69-70.
13
G Young, “A Short History of Post-Treaty Maori Customary Rights to Land”, in Waitangi Revisited: Perspectives
on the Treaty of Waitangi, ed. M Belgrave, M Kawharu and D Williams, Oxford University Press, Melbourne, 2004,
259.
24
records of the time show that those seeking to have their land rights recognised still based
their claims upon traditional tikanga principles.
Papatupu Block Committees worked closely with the District Land Councils. According
to Mcrae, during the investigation of titles, agreement amongst claimants was encouraged
at both levels. Objections to Committee decisions were heard by the Council. Councils
were able to adopt the views of the community elder committees set up to reach
agreement between claimants, and willingly did so, particularly if an “arrangement” had
been adopted by the Block Committee.14
The work of the Papatupu Block Committees in Tai Tokerau was positively
acknowledged by the Native Land Commission when it reviewed Maori land holdings in
the Tai Tokerau region in 1907:15
In 1900 Parliament delegated to Maori Committees elected by claimants to papatupu land, some of
the powers of the Native Land Court on investigation to title. We were given to understand that
this method of investigation had ignobly failed. Yet its results are astonishing, judging from the
following figures which summarise the position for all counties north of Auckland:
Area of blocks dealt with:
175,393 acres
Area affirmed by Board and
not appealed against:
28,315
Area appealed against and
finally determined by
Appellate Court:
73,217
Area referred to Native Land
Court, or for which no title issued: 72,420
The time occupied was seven years, and in our opinion there was considerable saving of money to
the state.
14
Mcrae, supra note 11 at 75-78.
Interim Report of Native Land Commission on Native Lands in the Counties of Whangarei, Hokianga, Bay of
Islands, Whangaroa, and Mangonui, AJHR 1908, Volume IV. F-G, G-1J, 8.
15
25
Mcrae notes that despite the fact that Maori showed a marked preference for the Papatupu
Block Committee process over the Native Land Court and the richness and extensive
nature of the material recorded, these records have been “accorded scant
acknowledgment” by researchers to date.16
This may be because the material is written in te reo Maori. As such it has not been
readily accessible to the Pakeha researchers who have provided most of the written
scholarship about Maori. Other reasons could be respect for the integrity of the archive
itself, or a desire to maintain the privacy of the resource by the whanau to whom the
records belong.
The material drawn from the Papatupu Block Committee Hearings forms the heart of this
study. It is supplemented by other information taken from Maori manuscripts that deal
with the pre-contact and contact period, held at the Auckland Library, Turnbull Library
and in private collections.
I have also drawn from the English writings of Europeans and Maori during the early 20th
Century. These English language sources have already been extensively examined by
researchers. In my view, research conducted by Maori whose natural framework of
thinking is referenced in terms of Maori concepts and principles, will add a valuable
dimension to the body of knowledge that already exists.
Although the New Zealand legal system is not the primary focus of this thesis, I will refer
to New Zealand case law and statute law where relevant, as well as to a variety of
commentaries on Maori land law and writings about Maori custom law.
(b)
Delimitations of the Study
This study is circumscribed by the following factors, which ought to be taken into
consideration when assessing its authority for future use.
16
Mcrae, supra note 11 at 75-78.
26
(i)
Author’s Position
As a legal academic whose tools of trade are principles and rules, I find that concepts
naturally take on different “cultural” perspectives, depending on whether I position
myself as Maori, Pakeha, Croatian, woman, lawyer, or a combination of the foregoing.
Sometimes concepts that are perfectly reasonable when employed in one mindset and set
of practices, take on a whole new meaning when viewed from the experiences of those to
whom they have been applied. This is particularly so if the recipient is from a different
culture. For instance, as a lawyer, the need for “objectivity” is a paramount requirement
for dispassionate evaluation and good legal decision-making. But for Maori generally,
“objectivity”, when backed by the force of law, is also be a value-laden term that masks a
colonial history of negative consequences for Maori in Aotearoa/New Zealand.
ie –– Objectivity >objectify > object > Maori
Maori evidence before the Waitangi Tribunal shows how Maori from throughout
Aotearoa/New Zealand have experienced the objective processes of the law as part of a
rationalising process used by colonial governing institutions to facilitate and legitimate
the ousting of Maori authority throughout Aotearoa/New Zealand.17
In contrast to an “objective” approach, within Tai Tokerau Maori society, the way to truth
has been promoted by elders such as Maori Marsden, as being through a passionate,
“subjective” approach, which engages the heart, the spirit and the ancestors, before ever
consciously touching the mind.18 The ideal process advocated and widely employed by
Maori in group discussion and decision-making, is one in which principles are often
17
The Waitangi Tribunal was established under the Treaty of Waitangi Act 1975. Section 6 of the Act sets out the
Tribunal's jurisdiction to investigate claims by Maori that any Acts, policies, practices or actions of the Crown are
inconsistent with the principles of the Treaty of Waitangi and have prejudicially affected Maori. Numerous claims
have been made by Maori hapu and iwi to the Waitangi Tribunal under section 6, some of which have led to
legislative recompense and an apology being made by the Crown. Tribunal reports are available online at
http://www.waitangi-tribunal.govt.nz/reports/
18
M Marsden, “God Man and Universe: A Maori View”, in Te Ao Hurihuri: The World Moves On, ed. M King,
Longman Paul, Auckland, 1981, 143.
27
layered, one upon the other, and the ramifications of their application discussed, until an
agreed outcome that is in accordance with those principles is reached.
The two approaches are not always easy to reconcile. In this study, I try to locate myself
at a juncture between cultures, languages and disciplines, where I can traverse Maori and
English concepts without undermining the integrity of either too much. In this way I seek
to minimise the tension of the dualistic approach that Maori academics working within
English-based colonial learning institutions must continually negotiate.
Location Map 1 (AREA OF STUDY)
(ii)
The Nature of the Study and the Geographical Region
This study is an analysis of the written material gathered from specific hearings
conducted as part of the Papatupu Block Hearings process established by Act of
Parliament. The Land Blocks discussed fall within an area extending from Hokianga on
28
the west coast, up to Ahipara in the north, across to Mangonui on the east coast, down to
Waitangi and back across to Hokianga.19
Within this region Maori regularly moved about visiting relatives and for a number of
other reasons, thus making it impossible to constrain the study strictly within the defined
boundaries. It is easier to trace the actions of specific individuals from the region through
the important events that are related by kai korero (speakers). For this reason, the study
can best be described as one that is “people” focused. The whakapapa of the individuals
giving evidence is, itself, determinative of the information related as the important history
for the area. Enmasse, the records provide a series of snapshots from the past, connected
by a whakapapa and whanaungatanga framework of “relatedness” that the speakers all
understand but do not always clearly set out. In Section B, I have constructed and set out
the Whakapapa framework I believe underpinned Maori custom law. This is the
theoretical framework of my thesis, against which the information in Sections C and D is
discussed and evaluated.
(iii)
Limited availability of written information about Tikanga Maori / Maori
Custom Law
The events recorded are unlikely to be the only significant ones in determining the
tikanga practices that existed within the areas covered in this study. Nevertheless, within
Tai Tokerau the main principles associated with various practices were broad enough to
encompass changes in circumstances encountered as members travelled outside their
territories.
This study does not exemplify general Maori practices throughout Aotearoa. Knowledge
of events is extremely contextualised in the Papatupu Hearings, with several rangatira
laying out the tikanga for an area. There are numerous, distinctly identifiable groups.
Each had its own established rangatira, who embodied the group’s identity at a given
time. Although whanau relationships and time frames are rarely clearly spelt out, it is
19
See Location Map 1, above.
29
clear that group formation and allegiances, though always in flux, occurred along a
whakapapa continuum of known kinship ties.
The information gathered in this study is an important indicator of how Maori custom law
once operated in Tai Tokerau. The information provided by rangatira was not restricted
to Blocks under discussion. Rangatira korero (the speeches of rangatira) encompassed
the entire region and laid out the history of their people on the land for several prior
generations. Of particular interest are the insights provided by rangatira as to the degree
of authority exercised by rangatira women within the Hokianga area.
At a basic level, a universal set of broadly defined jural principles is shared by all Maori
living within Aotearoa. For this reason it has been possible to use general writings about
concepts and principles from outside Tai Tokerau in Section A, which discusses why
there is a need for this study. At the same time, I have tried to be careful to ensure that
precedents specific to one area and whanau/hapu group are not transposed into Tai
Tokerau. However, in Section B, when constructing my theorectical framework for this
study, I have relied principally on information provided by writers from within Tai
Tokerau, or who have written about the area, in order to give the study greater integrity.
(iv)
Use of Te Reo – Oral Traditions
Maori knowledge is based on oral traditions that have been handed down through
successive generations within whanau and hapu. The use of oral recitation affects the
way custom law was recorded, developed and transmitted between generations. Much of
the wananga, or specialised knowledge, was restricted to certain classes of people and has
been lost, either intentionally or through lack of use. The Tohunga Suppression Acts
1907 and 1908 also assisted this process by outlawing Tohunga practices. Section 2(1) of
the 1908 Act stated:
30
Every person who gathers Maoris around him by practicing on their superstition or credulity, or
who misleads or attempts to mislead any Maori by professing or pretending to possess
supernatural powers in the treatment or cure of any disease, or in the foretelling of future events,
or otherwise, is liable … to a fine … or to imprisonment … .
The Act was strongly supported by influential Maori of the time in order to outlaw the
practices of “quackery” by Maori who were holding themselves out as being able to cure
illnesses and to stop fatalities occurring from their inability to do so.20 In failing to
distinguish the legitimate role of tohunga in the transferal of knowledge, however, the
Act also undermined the standing of holders of customary tikanga. Despite this, verbal
transmission of local knowledge and history continued to occur on the marae and as part
of the everyday processes of Maori community life and some ancestral knowledge
survived.
The advantage of verbal transmission is that it allows for information to remain
contextualised and localised. It provides room for the local people to justify, explain,
protect, direct and guide the dissemination of information to their audiences. In this way
they are able to better control its application as a precedent, and prevent it being applied
to circumstances that do not suit the needs of the community.
There are, undoubtedly, sources of oral history within Tai Tokerau that will conflict with
the information recorded by those who gave evidence before the Papatupu Block
Committees and the Native Land Court. Thus, this study is not proffered as “the truth”
about the area. It is the work of a single mind, guided by others, using the resources
cited. In western academic studies it is usual for the writer to proclaim his or her
expertise at the end of the study. In Maori custom, the opposite is true. The writer
acknowledges that at the end of the day, she knows far less than she did at the outset of
her journey, but nevertheless leaves a small offering for those who will follow to build
upon.
20
NZPD 1907 Vol 139, 510-525.
31
(v)
Use of Te Reo – Written Works
Following European contact, some Maori knowledge was committed to writing in te reo.
Of this, the Native Committee and Papatupu Block Committee Hearings provide one of
the richest sources of material concerning tikanga relating to land. Although the
opportunity for tikanga to be skewed towards maximising each speaker’s own land
entitlements was great, Mcrae records that the Tokerau District Maori Land Council
responsible for confirming the reports provided by the Papatupu Committees and hearing
any objections, expressed surprise at the degree of fairness shown by elder committees:21
The first matter the Council has to decide is the claim … under conquest. The Council has come to
the conclusion that there has been no conquest … the Committee of elders who were well
acquainted with the history of the land refused to recognise the alleged conquest although some of
them would have benefited to a large extent under it and this fact has influenced the minds of the
Councillors considerably as against the Conquest …. The decision in this case was arrived at by a
Committee of Elders after months of work and consideration and was confirmed and adopted by
the Block Committee …
After perusing the evidence given before the different Committees which sat on the Block and
hearing the evidence given at this sitting the Council has come to the conclusion that its proper
course is to adopt the Block Committee decision.
In order to gain a better understanding of the information used in this study, I had to learn
the whakapapa links of the rangatira whose evidence I was using, to Ngapuhi nui tonu
(the wider Ngapuhi iwi) and the ancestor Rahiri, to whom all claim a connection. In this,
I have relied heavily on Marara Te Tai-Hook, who belongs to Ngai Tawake ki te Moana
and Dr Cleve Barlow of Ngapuhi. Without Marara’s translations there would be no
material to study. And without Cleve’s guidance there would be a lesser understanding
of that material. Notwithstanding that, responsibility for the selection and interpretation
of the material used is mine alone.
21
Mcrae, supra note 11 at 78.
32
In conducting this study I do not seek to trample local knowledge held by kaumatua
today, which may be at odds with my analysis or the information I have used to support
it. My intention is to assist with providing a clearer idea of Maori custom law by
examining what our tupuna said took place in the past, extracting key principles, looking
at their past application and then comparing it with a modern application under the New
Zealand legal system.
(vi)
Translating Maori Concepts into English
Translating across cultures is a difficult task. At best the process is an imprecise one that
relies on approximation and loose parallel as a means of conveying meaning and context
across cultures. Added to this difficulty is the high expectation of Maori, that abilities
acquired in the Pakeha world and Pakeha knowledge institutions will be equally matched
by those gleaned from operating with “great patience and practice on marae and at Maori
gatherings throughout the country”.22 As Maori lawyers, we are often challenged by our
own people about the authenticity of the learning we have acquired outside of our own
territories and from within the confines of Pakeha institutions. The best way of
minimising such criticism is to use the Maori language as the vehicle of communication
rather than trying to invest English language with Maori values and concepts. I choose to
write in English, however, because I work and teach in an English-speaking environment
and want the results of my study to be widely accessible. Although some of the richness
of language and culture that informs tikanga may be sacrificed in the process, I have tried
to keep the main themes constant and clear throughout.
22
M Mutu, Cultural Misunderstanding or Deliberate Mistranslation”, Te Reo: Journal of the Linguistic society of
New Zealand, Auckland, 1992, 57-103.
33
3. HEI AHA TENEI MAHI?
WHY IS THERE A NEED FOR THIS STUDY?
(a)
Introduction
I believe that a modern, coherent system of Maori custom law, whose principles are
widely understood and used by Maori, is necessary in Aotearoa/New Zealand. I also
believe that the acceptance of such a system requires greater education of both Maori and
non-Maori New Zealanders in the principles of Maori custom law and how they apply in
practice. At present Maori custom law consists of a loose association of ideas, concepts
and principles that has no particular pattern of organisation or hierarchy of principles. Its
hallmark seems to be the “flexibility” with which these concepts and principles can be
made to apply to any situation, in any order, by those who assert them. On the marae,
“tikanga” is being argued vigorously to support the views of a growing number of selfstyled Maori leaders. While this process is politically sound, it lacks the discipline
required for the application of law in a modern society.
Maori custom law needs to be more than just a grab bag of amorphous concepts and
principles if it is to have credibility as a coherent, workable system of law within the
Maori community and wider New Zealand society. It needs to be understood as having
internal coherence and consistency. This in turn, requires the articulation of a structured
framework within which tikanga principles can be applied. It also requires decisionmakers capable of properly appreciating and applying those principles.
The fear that such a framework would lead to rigid application of tikanga principles as
fixed rules, is to misunderstand the nature of principle-based decision-making. Principles
by their nature, are flexible tools that can be applied to a variety of different situations to
produce significantly different outcomes. The quality and acceptance of a particular
outcome by the individuals it affects is reliant on a number of factors. They include the
information available to all participants, the arguments produced, as well as the quality
and nature of the decision-making process itself, who the decision-makers are and where
34
the final decision rests. This is true whatever the culture. These are matters that have to
be addressed if Maori custom law is to be workable in today’s society.
In Section B, I articulate the thinking framework that I believe holds a system of Maori
custom law together. In Sections C and D, I employ this thinking framework to structure
the information provided in legal hearings, by two different generations of Maori, living
100 years apart. In this way I am able to test whether the principles set out in Section B
and applied in Section C have remained relatively stable over time even though the
outcomes of their application may have changed.
Although I do not attempt a detailed analysis of the relationship of Maori custom law to
the English-based New Zealand legal system in this study, it is nevertheless, an important
part of this study. In this Section I briefly refer to the New Zealand legal system in order
to support why I think the study is necessary in the first place. In Section D the New
Zealand legal system forms the formal hearing process within which Maori custom law
principles are now being employed.
There are two quite distinct underlying reasons for this study, one positive and the other
negative.
First, there is the recent call by His Honour, Justice Eddie Durie, for research to support
the work of the Waitangi Tribunal and the Maori Land Court when applying Maori
custom law within the framework of the New Zealand legal system. In order for Maori
custom law to be applied as part of another system of law it is advantageous to
understand it as a stand-alone system capable of existing on its own terms. Thus, there is
a need for a better understanding of how Maori custom law fits together as a coherent,
principle-based system of law. This is discussed further in (c) of this section, “Need for
research to support the work of the Maori Land Court and the Waitangi Tribunal”.
Second, is my personal conviction that there is still a need to dispel the perception
conveyed by some influential early Pakeha settler-writers that Maori were an
35
intellectually inferior race and that Maori custom law existed as a set of discrete practices
devoid of a coherent principle-base or any reference to abstract thinking. I also read this
type of thinking into the writing of some modern academics and judges and believe that
such views have strong genealogical connections to those of earlier Pakeha writers about
Maori society. Closely aligned to this is the difficulty that some judges have in dealing
with Maori “spiritual” concepts as part of modern New Zealand law, that is reflected in
the weight given to those considerations in judicial decision-making. This issue is
discussed further in Section D.
(b)
Abstract thinking as a fundamental requirement of Maori custom law
In 1984, English legal scholar Peter Stein, writing about legal institutions generally,
stated that as societies move from simple, hunter-gatherer societies, to agricultural, to
commerce based, their thinking becomes “more abstract”.23 Writing in 2004, Grant
Young refers to Maori custom as being the result, not of abstract thinking, but of practical
debates:24
Custom can be neither abstracted nor reduced to rules. Rather, it is defined by the specific
circumstances in which it operated –– relationships between people with common whakapapa or
descent lines, occupation and use rights which are defined in a process of ongoing debate and
dialogue … . These debates (not abstract rules) were the very essence of custom.
While the statement as to the importance of debate in Maori society is correct, the more
important point that Young, and perhaps even Stein, overlooks, is the basic fact that the
ability to think in abstraction is an adaptive device necessary to cope with daily living,
irrespective of circumstances or culture. The debates referred to by Young were based
around highly abstract notions of the concepts, principles and rules that a particular
community considered important enough to be accepted as conceptual regulators of
correct behaviour amongst members of the group. It is vital that this complex of abstract
concepts, principles and rules that lies at the heart of custom is not obscured by the
23
24
P Stein, Legal Institutions: The Development of Dispute Settlement, Butterworths, London, 1984, 144.
Young, supra note 13 at 250-251.
36
practice of debating, or by focusing exclusively on the practices found within Maori
society at the expense of their underlying principle-base.
I think that the ancestry of this type of thinking is found in the writings of influential
early New Zealand writers who studied Maori society. Edward Shortland, (1812-1893)
for example, described Maori as having “a very limited notion of the abstract” so that “all
his ideas take naturally a concrete form”.25 This judgement about Maori enabled
Shortland to compare Maori with Greek thinking in which he noted an “absence, too, of
all abstract and metaphysical ideas from Homer”,26 and to reach the conclusion that the
Maori creation stories he was gathering were simply “mythology” and “primitive
religion”. This marks an important wrong-turn in cross-cultural understanding.
Shortland was unable to see that the creation stories provided an entry point for
understanding Maori thinking about the world and the abstractions necessary to sustain
the attendant ideas as part of an ongoing systemic process. Later on, Stephenson Percy
Smith, (1840-1922), whose major work, the Lore of the Whare Wananga, was a
compilation and translation of Maori traditions from tohunga (experts in Maori
knowledge),27 reinforced these negative views by writing that he was dealing with the
“working of the mind of primitive man in 2000 isolation from ‘higher culture’ and
trapped in the stone age”.28
The link between “mind”, “culture” and “technology” reflects a common fallacy of
Smith's time, that of linking the mental processes of an entire race of Maori to the nonavailability of technology in the society in which they live, and seeing the two as being
parallel processes. While Smith admitted that he was unable to occupy the same stand
point as the two tohunga whose knowledge he was recording, he did not see that he was
in the presence of highly skilled men whose designated role was to formulate and meld
25
E Shortland, Maori Religion and Mythology, Longmans, Green and Co., London, 1882, 5.
Ibid.
27
Within Maori society supreme knowledge of spiritual matters was once held by tohunga (experts) and
disseminated to chosen others in a series of wananga (teaching forums), which took place throughout Aotearoa.
28
SP Smith, Lore of the Whare Wananga, Polynesial Society, New Plymouth, 1913, iii.
26
37
concepts in a completely abstract world of existence. “Wairuatanga” (spirituality) as a
complex abstract process of Maori thinking and conceptualising, slipped by him.
During the mid 19th – early 20th Century period most of the information gathered about
Maori spirituality was written down by Pakeha. Together with a few private Maori
manuscripts and oral traditions handed down on the marae, these writings form the basis
of our present day knowledge about early Maori spirituality.
Not all of the early writers minimised the cognitive ability and spiritual leanings of Maori
society. Gudgeon, (1841-1920) described the Maori as “a man of powerful intellect,
whose mind can think and reason as logically on any subject with which he is acquainted
as his more favoured European brethren”.29 Elsdon Best, (1856-1931) was fascinated by
what he termed the “mystic nature” of the Maori that had “prompted him to indulge in
introspective thought, to evolve abstractions, to conceive qualities and potentiae spiritual
and intellectual”.30
Gudgeon and Best’s acceptance of the Maori ability to create and deal with abstractions
placed them at an advantage when dealing with matters of a spiritual nature. Best
particularly, had a lot to say on the subject. He acknowledged that he was dealing with a
different worldview from that of his own and that Maori “often assigned a greater number
of spiritual potentae to man” than did the English. He also understood that to extend
“spirituality” to inanimate objects in the way Maori did would require the English
imagination to stretch beyond accepted 19th Century Christian thinking which elevated
humans above all other aspects of creation. Such a shift, he thought, would require “a
mental revolution by no means easy to bring about”.31 Best’s analysis of Maori thinking
led him to believe that concepts associated with Maori ideas of spirituality originated in
29
TW Gudgeon, History and Doings of the Maoris, From the Year 1820 to the Signing of the Treaty of Waitangi
1840, H Brett, Auckland, 1885, 183.
30
E Best, Spiritual and Mental Concepts of the Maori, Monography No. 2, Dominion Museum, Wellington,
reprinted 1978, 7.
31
Ibid at 6.
38
thinking about the human person, which had been extended to other objects via the
process of personification.32
In his endeavours to conceive the marvels of life the Maori, as we have seen, evolved the belief in
several spiritual and intellectual potentiae. He not only endowed man with these principles, but he
also assigned them to animals and to inanimate objects.
To the extent that any conceptualisation is a product of the human mind and imagination,
Best is correct in thinking that Maori had extended their thinking about human spirituality
to other things. But Best’s “Maori” view of the world is essentially anthropocentric, and
does not fit comfortably with a paradigm of Maori philosophy that sees humans as a very
small section of a wider world that is beyond human control.
Despite Best’s identifying the Maori usage of “qualities”, “spiritual potentiae” and
“intellectual potentiae” he made no attempt to further define what they were and how
they fitted with various Maori concepts. For example, “mana” can be termed a
“substantive” component of all things, but it can also be independently viewed as a
symbolic reference to power and authority. Other concepts, such as “whakapapa” and
“whanaungatanga” are important “structuring” concepts, which provide Maori with an
intellectual infrastructure within which other concepts can be linked coherently. Had
Best differentiated Maori concepts according to the jobs they do and the purpose they
serve, he would have shepherded future scholars toward an understanding of Maori
custom law as a consistent framework of abstract jural principles, and away from the
opposite tendency of viewing custom simply as an amalgam of discrete practices.
Unfortunately, despite his astuteness, Best also reflected the thinking of the day in
believing that “the lot of people of the higher culture-plane, when brought into contact
with those of an inferior grade, is not to cultivate their sense of the abstract, but to curb
it.”33
32
33
Ibid at 7 and 56.
Ibid at 5.
39
The ongoing difficulty of dealing with Maori concepts, particularly those of a spiritual
nature, is addressed by John Patterson in his book Exploring Maori Values.34 As a
Pakeha philosopher, he tries to overcome the problem and achieve “a sympathetic and
deep understanding of Maori thought and practices” to “take Maori values seriously, try
to understand Maori philosophy on its own terms, try to see the world as Maori see it”.
Patterson approaches Maori spirituality by searching for the underlying values associated
with various Maori concepts, in preference to examining a metaphysical world that has its
origin in the spiritual realm. Thus he separates the everyday usage of terms and their
application from the belief system that produces them. So for example: 35
In the parallel case of mana (and the other Maori spiritual concepts), what I am proposing is that,
however ‘spiritual’ the explanation of mana given by the experts, the everyday meaning of the
term does not necessarily depend on or entail any spiritual ‘ingredient’ – it does not commit the
user to that particular metaphysics.
This approach has the advantage of avoiding a head on collision with a Maori explanation
of the “spiritual” origin and composition of the universe as “real”, something that cannot
be substantiated by tactile physical evidence. It also allows scholars to study Maori
thinking processes via English language-based concepts through employing a set of
English values that are considered broad enough to be acceptable to Maori and English
language speakers and writers. In a predominantly English-speaking and writing society,
this offers a practical solution. The downside is that it will always be open to the
criticism that it settles the issue of dealing with Maori spiritual concepts by removing
them from their natural language context, and therefore, is inherently flawed.36
34
J Patterson, Exploring Maori Values, Dunmore Press, Palmerston North, 1992, 11.
Ibid at 77.
36
Despite its advantages, using English language to convey thoughts, ideas, concepts and principles that fit more
naturally within a Maori language contextual framework always raises issues relating to the unavoidable pitfalls of
cross-cultural translation.
35
40
Irrespective of the approach or language adopted, it is important to understand that the
rules, principles and values that comprise any system of law are built up by a society over
many years. The perceptions and attitudes held by members of that society influences the
type of rules and principles that develop and the manner and degree to which they are
enforced. Two different societies living in total isolation of each other will very likely
produce totally different systems of law.37 Should they then come to occupy the same
geographical space, the extent to which one is successfully superimposed over the other
may be reliant as much on physical force as it is on any sense of moral or intellectual
supremacy. Although it is possible for the two to co-exist in harmony, it is just as likely,
as occurred in areas of Aotearoa/New Zealand, that physical force will be used to
consolidate a sense of moral supremacy arising from the view that the English culture and
race are superior to Maori.
After contact, the English common law was imposed as the overriding law of New
Zealand, to which Maori and colonist alike, became subject. Within the new system, the
place of Maori custom law, while notionally still extant, became relegated to second
place. The need to acquire land for settlement meant that many early laws were passed to
facilitate the acquisition of land from Maori. The translation of Maori customary title
into a title cognisable under the colonial law after 1862, when the first Native Land Act
was passed and the Native Land Court established, made this much easier. The specialist
nature of the Native Land Court, while notionally based on tikanga practices, was Pakeha
controlled, and tikanga was interpreted and rules of practice adopted that assisted the
alienation of Maori land out of Maori hands.38
(c) Need for Research to Support the work of the Maori Land Court and
the Waitangi Tribunal
37
38
A Erh-Soon Tay and E Kamenka, “Introduction: Some Theses on Property”, UNSWLJ, Vol 11 (1988) 2.
DV Williams, ‘Te Kooti Tango Whenua’: The Native Land Court 1864-1909, Huia Publishers, Wellington, 1999.
41
(i)
The call for Research into Maori Custom Law
In January 1994, Eddie Durie, New Zealand’s foremost modern Maori jurist, produced an
informal discussion paper titled, “Custom Law”.39 Although initially confidential, the
paper was well circulated and discussed amongst the Maori legal community. In his
paper Durie defined custom law as meaning:40
law generated by social practice and acceptance as distinct from ‘institutional law’ which is generated
from the organs of a super-ordinate authority. Custom was a significant source of English law but has
since been mainly replaced by common law (case law) and statutory regulation.
Durie's reference to acceptable social practice as the basis of Maori custom law does not
detract from the idea that there is a principle base from which these practices are derived.
He later defined Maori custom law as:41
… the values, standards, principles or norms to which the Maori community generally subscribed
for the determination of appropriate conduct …
The purpose of the 1994 paper was to encourage discussion and research into Maori
custom law, which Durie felt was urgently needed to assist the processes of both the
Maori Land Court and the Waitangi Tribunal.42
In 1994 the need for assistance became apparent in Tribunal hearings outside the Tai
Tokerau area. During the Eastern Bay of Plenty hearings before the Waitangi Tribunal a
question arose as to whether Ngati Tuwharetoa-ki-Kawerau could define a boundary for
themselves within the rohe of Ngati Awa. An examination of the history of the claim
39
ET Durie, Custom Law, (Unpublished paper for Waitangi Tribunal members and later referred to the Law
Commission), January, 1994.
40
Ibid.
41
ET Durie, “Will the Settlers Settle? Cultural Conciliation and Law (1996) 8 Otago Law Review 449.
42
At the time Durie was Chief Judge of the Maori Land Court and Chairperson of the Waitangi Tribunal. He has
since been appointed to the High Court of New Zealand.
42
raised the further general question as to whether defined boundaries existed between iwi
in pre-contact Aotearoa:43
The question of where the boundaries lie between contending iwi, assumes such boundaries
existed. The Tribunal is not entirely convinced that iwi were arranged as state-like institutions with
borders of approximate definition fuzzed only by contestable zones.
In the same hearing another question arose as to the meaning and origins of the term
“mana whenua” as a principle of Maori custom law:44
… the modern use appears to be that in s2 of the Resource Management Act 1993 where mana
whenua means “the customary authority exercised by an iwi or hapu in an identifiable area”.
Sometimes however it is also used as a cultural equivalent for western concepts of suzerainty.
The alternative proposition is that mana accrued to people not land, and that those of great mana
could unite many hapu as one iwi to exert influence over a wide territory. Similarly if mana was
lost, territory was lost as hapu found alternative allegiances. …
Counsel should also be aware of some argument that the use of mana whenua, or mana as applied
to land as distinct from persons, may be new and arose from Maori attempts to adapt to the new
exigencies that land purchase operations and the Native Land Court imposed. …
In Section C, the Papatupu information establishes that in Tai Tokerau the setting of
boundaries was important in the demarcation of territory between hapu. The use of the
term “mana whenua” however, is not used and the term “mana rangatira” is used instead.
In his original, Durie identified several key concepts of Maori custom law. These
included “whanaungatanga”, “mana”, “manaakitanga”, “aroha”, “mana tupuna”,
43
Waitangi Tribunal, Direction, Memoranda on Procedure, Evidence and Issues in the Inquiry into the Ngati Awa,
Tuwharetoa and other claims of the Eastern Bay of Plenty as at end October 1994, WAI– 46, Papers in Proceedings
2.59, 18. Questions concerning boundaries and “mana whenua” had arisen in the earlier Ngaitahu Hearings and had
been referred to the Maori Appellate Court for decision. See Re a claim to the Waitangi Tribunal by Henare Rakihia
Tau and the Ngai Tahu Trust Board, 12/11/90, Maori Appellate Court, Te Waipounamu District, Case Stated 1/89, 4
South Island Appellate Court Minute Book, folio 673, 1.
44
Ibid.
43
“wairua” and “utu”, which he stated to be “conceptual regulators of tikanga, or as
providing the fundamental principles or values of Maori law”.45
(ii)
The New Zealand Law Commission “Maori Custom and values in New
Zealand Law” Paper
In March 2001, 7 years after Durie produced his initial Discussion Paper, the Law
Commission published “Maori Custom and Values in New Zealand Law”, as a partial
response to the concerns Durie had expressed about the lack of knowledge held by the
judiciary regarding Maori custom law:46
Even for a Judge of the Maori Land Court it is not a simple task to introduce Maori Custom law.
As a Judge of that court for the last 20 years, I can say that in that time there has been no course of
instructional training for the judges on customary tenure and ancestral law.
The general courts have assumed however that the judges of the Maori Court have a specialist
knowledge of Maori custom. … In fact, however, the specialist knowledge that the Maori Land
Court possesses is not a knowledge of custom but of the complex laws introduced to replace
customary tenure. Some knowledge of customary preference inevitably rubs off through the
Judges’ long association with Maori people; but the experience so gained is anecdotal and not
founded in scholarship.
The paper produced by the Law Commission is an extension of Durie’s 1994 Custom
Law paper, and is supplemented by the views of Joe Williams, Chief Judge of the Maori
Land Court and academics David Williams and Joan Metge, as well as those of several
other legal and non-legal academics.
45
Durie, supra note 39 at 5.
New Zealand Law Commission, Maori Custom and Values in New Zealand Law, Wellington, March 2001, viii;
original reference – ET Durie, “Custom Law: Address to the New Zealand Society for Legal and Social Philosophy”
(1994) 24 VUWLR 325.
46
44
As with Durie’s original paper, one of the purposes of the Commission’s study was to
identify underlying values and fundamental principles of Maori custom law and to
encourage further research. While happy to collate the views of various commentators,
the Commission was clear that it did not want to go any further than that:47
The Commission does not inject its own view on these matters. Recognising that ultimately it is
only Maori who can decide what their values are and how each value applies in a particular
context, we wish only to highlight the mosaic of thinking and opinions that exist concerning Maori
values and perhaps to stimulate further debate on these issues.
The Law Commission identified a number of “central values” it sees as underpinning the
totality of tikanga Maori. They include “whanaungatanga; mana; tapu; utu; and
kaitiakitanga”.48 The list is stated as not being exhaustive:49
… These values in no way form a definitive list. Each tribal grouping will have its own variation
of each of these values. Some will also have slightly different ideas as to which values inform
tikanga Maori. Further reflection is required in the search within Maori society for the basic norms
which might constitute Maori law.
This study is partially motivated by a desire to respond positively to the Law
Commission’s call for more study to be carried out into Maori custom law.
a.
The ability of Maori Custom Law to Change over time
It is accepted by the contributors to the Law Commission paper that tikanga (Maori
customary principles) adapts to new circumstances. That changes occur in customary
47
NZLC, ibid at 28.
The list is taken from J Williams, He Aha te Tikanga Maori (unpublished paper for the Law Commission), 1998, 9.
49
NZLC, supra note 46 at 28.
48
45
practice was picked up by the Native Appellate Court in Hineiti Rirerire Arani v Public
Trustee of New Zealand,50 where the court stated that “Native custom … is not a fixed
thing. It is based upon the old custom as it existed before the arrival of Europeans, but it
has developed, and become adapted to the changing circumstances of the Maori race
today”. The Privy Council upheld this, noting the different sources of Maori and English
law. 51
It may well be that this is a sound view of the law, and that [Maori] as a race may have some
internal power of self-government enabling the tribe or tribes by common consent to modify their
customs, and that the custom of such a race is not to be put on a level with the custom of an
English borough or other local area which must stand as it always has stood, seeing that there is no
quasi-legislative internal authority which can modify it.
All systems of law have some mechanism for allowing change to meet new
circumstances. That Maori were able to modify their customary practices by applying the
same principles to different situations to reach different outcomes is no different to what
occurs when judges apply principles to cases under the English common law. The
modification of “customs” referred to by the court in this case is simply the result of
principle-based reasoning in an inclusive community forum. This fact should not have
been obscured by formal processes that relied on oral tradition, personal integrity and
status within the group, or the manner of enforcement found within Maori society.
A notable difference between Maori and English custom law appears to be that while
Maori custom law focuses on maintaining the underlying relationships between parties
and uses its principles to uphold those relationships, English law appears to place more
reliance on observable practices as the basis of custom law.
50
51
[1920] AC 198 at 204.
Ibid at 204-205.
46
The Law Commission refers to Durie’s statements that pre-contact practices such as
cannibalism, infanticide, warfare and slavery are no longer in use within Maori society as
providing evidence of radical change having taken place in practices associated with
Maori custom law. I would say that these changes in practice are superficial
manifestations only, being based on the successful introduction of Christian morals into
Maori society. However, the principles underlying these “unacceptable practices” are
those of “whakapapa”, “whanaungatanga”, “mana” and “tapu”, which the Commission
identifies as being amongst those principles that are still relevant today. What has
changed is their outward expression, which has been re-aligned to suit the mores of
modern western society. This points to Maori custom law as having maintained stability
over time in terms of its underlying principles. It also accords with Durie’s statement
that:52
… adherence to principles, not rules, enabled change while maintaining cultural integrity, with out
the need for a superordinate authority to enact amendments. Custom does not, therefore, appear to
have been lacking for vitality and flexibility. Inconvenient precedent could simply be treated as
irrelevant, or unrelated to current needs, but precedent nonetheless was regularly drawn upon to
determine appropriate action. Accordingly, while custom has usually been posited as finite law
that has always existed, in reality customary policy was dynamic and receptive to change, but
change was effected with adherence to those fundamental principles and beliefs that Maori
considered appropriate to govern the relationships between persons, peoples and the environment.
This reliance on principle instead of practice in setting the framework for Maori custom
law is further examined in Sections C and D of this thesis.
b.
Aligning Maori Custom Law with the English Common Law System
introduced into Aotearoa in 1840
52
Durie, supra note 39 at 3-4.
47
There are three avenues referred to in the Commission study paper by which Maori
custom law remains a relevant part of the law applicable in Aotearoa/New Zealand today.
They are via the doctrine of aboriginal title; through the passage of domestic legislation
and via Te Tiriti o Waitangi/the Treaty of Waitangi.
It can be argued that each of the above avenues provides some recognition for Maori
custom law under the law of New Zealand. A lot of research has already been conducted
into these areas and I do not intend to cover what are already well worn paths. What I am
interested in exploring is a fourth avenue, one by which Maori custom law could become
even more relevant for the future, should Maori choose to adopt through “selfrecognition”, a modern system of Maori custom law. In order to facilitate the choice the
question must be asked –– Are our principles strong enough to sustain a modern, selfcontained system of Maori custom law capable of operating in today’s society? If, as the
Privy Council has stated, Maori custom law is capable of internal development, then the
principles and concepts that hold it together must be clearly articulated in a framework
that suits today’s living. Even if the application of Maori custom law is restricted to a
second tier of law within Aotearoa/New Zealand, and remains subject to New Zealand
parliamentary processes, greater clarity as to its past use will ensure better understanding
and could indicate future directions for development to coming generations of New
Zealanders. My task in this study is to assist the accomplishment of that goal by piecing
together a potential framework for others to pick over.
(iii)
Conclusion
Even though neither paper specifically argues for it, I think that both the original Durie
paper and the Law Commission paper highlight the need for greater research into how
custom law operated in early Maori society, in order to provide a coherent basis for a
modern system of Maori custom law. Whether or not Maori society had “law” before
contact with Europeans is no longer an essential or necessary part of the discussion. It is
48
well recognised within the English-speaking world that indigenous peoples, including
Maori, lived in established societies with their own internal regulators of social
behaviour. It is also accepted that those regulators were part of a wider framework aimed
at maintaining order within society. The more pertinent question therefore, is the one
posed by Durie. What were the important concepts by which Maori people, regulated
and governed their society? There are a number of other questions that stem from this.
How did those concepts operate in the past to provide a stable society? Can they be
transposed into modern society to regulate interactions between Maori people and others?
If so, how is the incorporation of principles from one legal system into another being
managed by judicial decision-makers at the present time?
49
WAHANGA TUARUA – SECTION B
TE KAUPAPA O TE MAHI – A MAORI CONCEPTUAL FRAMEWORK
50
1. TIMATANGA – INTRODUCTION AND STRUCTURE OF SECTION B
At a conceptual and attitudinal level, Maori and Pakeha have very different ways of
thinking about fundamental aspects of life, living, what it is to “be human” and the place
humans occupy in the greater scheme of things. These differences are the product of
different worldviews which, in turn, have given rise to two very different systems of law,
both of which now exist within the same geographical space.
Maori custom law had its beginnings in ideas, concepts and practices that originated in
the wider Pacific and which have been adapted to meet the exigencies of the new
circumstances encountered after arrival and settlement in Aotearoa. Within Tai Tokerau,
Maori were very mobile. Although frequent interaction and marriage with other groups,
and the recruitment of pononga (prisoners whose status had been diminished by defeat)
after wars, may have led to the adaptation of existing practices to incorporate new
initiatives, the primary links between people were locally rooted in genealogical
associations to their lands.
In this Section, I identify the broad intellectual framework of Maori custom law and
identify the main concepts and principles that I believe inform that framework. In
building this framework, several sources of information are used. They include
information gathered by some Pakeha writers whose works have provided a record of
Maori principles and practices in the early colonisation period53 modern Maori research
conducted by academics such as Maori Marsden, Pat Hohepa and Cleve Barlow who are
from Tai Tokerau, and modern Pakeha writers such as Michael Shirres and Joan Metge,
who have researched within the area.
53
In using this material a distinction is made between the information gathered directly from Maori and the
interpretation of that material once it had been gathered which has been the subject of academic criticism by modern
scholars. Elsdon Best, for example, is a contrary character who has often been criticised for referring to Maori as
“primitive” and “barbaric” and for perpetuating the myth of an earlier race of settlers that had been overborne by
Maori. see R Walker, Ka Whawhai Tonu Matou, Penguin Books, Auckland, 1990, 40. Despite these statements,
Best’s descriptions of Maori spiritual and mental concepts provides a thorough written account of the time. His view
of Maori as a strong minded people capable of formulating complex intellectual structures that are the equal of, and
perhaps even superior to, those of the European, is often overlooked in favour of his racist comments, by later
writers.
51
My experience as a legal academic has led me to the the conclusion that there are some
general statements about Maori concepts and principles that apply to all concepts and
principles, irrespective of the language from which they derive or that is used to articulate
their associated ideas.
It is my view that in order for Maori concepts and principles to be part of a jural
framework requires:
1.
The identification of the relevant concepts and principles.
2.
A general understanding of the content and purpose of each concept/principle.
3.
An understanding of how particular concepts/principles relate to each other in
a broader conceptual framework.
4.
Examples of the relevance and importance of particular concepts/principles to
different practical situations.
1–3 are discursive, being born of a world of abstraction, in which ideas and concepts are
each assigned specific content and purpose, and then ordered to form a coherent pattern.
Once that pattern becomes systemised it forms the basis from which a system of law can
develop. 4, sits at the practical end of the process, where application of principles to
existing factual situations can produce a range of different outcomes. Reliance on overt
practices without due consideration also being given to underlying concepts and
principles and their relationship to each other, can lead to a facile understanding of Maori
custom law which downgrades it from a complex system of law to a series of
disconnected practices.
When Maori were the only inhabitants of Aotearoa, there was no need to articulate a rigid
Maori custom law structure because Maori concepts and principles were used without
interference or challenge from any competing ideology. Maori society organised itself
along whanau (family) relationships and the underlying concepts and principles were
ones that could be readily used in daily living by all members of the society. In this
respect, Maori society can be viewed as self-regulating from within, making an external
52
legal framework, divorced from daily living, unnecessary. Did a common set of concepts
and principles exist amongst Maori before colonisation from which a universal system of
law can be drawn? An affirmative answer can be given because, in my view, “law” is an
abstract concept that is language-based. A single, mutually intelligible language existed
amongst all Maori in Aotearoa at the time of European contact. If the language is shared,
the likelihood is that some of the concepts that inform the language will also be shared.
In Aotearoa, it is well established by the early writers about Maori that the same
fundamental concepts were used by all Maori hapu and iwi. Differences in dialect and
the range of practices that resulted from applying these basic concepts and principles
locally, does not alter that.
After the advent of the Native Land Court in 1862, however, major inroads were made
into tikanga Maori, as Pakeha judges sought to implement what they understood as being
tikanga.54 This attenuated system of Maori custom law is not what I am looking at in this
Section. Instead, I attempt to identify the Maori foundations of a system that had its basis
in a series of concepts and principles that originated from tikanga Maori, as a separate
source of law.
2.
TE AO MAORI – A MAORI WORLDVIEW
(a)
Introduction
The Oxford Encyclopedic English Dictionary55 has no comprehensive definition for the
term “worldview”. In a definition of “world” which takes up two-thirds of a page, the
definition of “worldview” takes up half a line and simply states “worldview =
WELTANSCHAUUNG”. “Weltanschauung” is defined as “a particular philosophy or
view of life; a conception of the world”.56
54
Note for example the Papakura – Claim of Succession, where Chief Judge Fenton introduces the practice of all
siblings taking equal shares in land from their parents as a rule applying to succession. Important Judgments
Delivered in the Compensation Court and Native Land Court, 1866-1879, Auckland, Native Land Court, 1879
(Southern Reprints 1994) 19-20.
55
Oxford Encyclopedic English Dictionary, eds J Hawkins and R Allen, Clarendon Press, Oxford, 1991, 1666.
56
Ibid at 1642.
53
In this Part of Section B, I introduce and discuss three important aspects of a Maori
worldview. They are the Maori view of ultimate reality, the creation stories and Nga
Kete Tuatoru (the three baskets of knowledge).
(b)
Wairua – Maori Reality
The Maori of Te Ao Kohatu (ancient times) lived in a dynamic universe, which they
perceived as a continuous stream of interwoven spiritual and physical genealogies.
According to Ngapuhi kaumatua and philosopher, Maori Marsden:57
… the ancient seers, … created their sets of symbols to provide them with their maps/models to
portray each state in this evolutionary process. These representations were the means by which
they could elucidate the various worlds; and grasp what they perceived as ultimate reality.
Ngapuhi tohunga (philosophers) constructed their knowledge within a meta-physical
reality in which all things were believed to have originated from a “wairua” (spiritual)
source. Within the teachings of the Whare Wananga (houses of learning) in Ngapuhi, the
“wairua” was considered to be part of a much broader, overall conception. It was a
descriptive term used to describe the original source and “stuff of the universe” that
permeated all things and had the potential to take on the shape and form necessary for all
matter of existence to develop and thrive.
In 1988, Marsden recorded his view of the ultimate reality of the Maori people as part of
the Resource Management law reform process:58
57
-
That ultimate reality is wairua-spirit;
-
The Universe is ‘Process’;
-
Io-taketake, is First Cause, Ground of Being, Creator and Genesis of the cosmic process;
M Marsden, “The Natural World and Natural Resources: Maori Value Systems and Perspectives” in Resource
Management Law Reform, Volume 29A, Ministry for the Environment, Wellington 1988, 9, reprinted in The Woven
Universe –– Selected Writings of Rev. Maori Marsden, ed T Royal, Te Wananga o Raukawa, Otaki, 2003, 31.
Marsden was also ordained as an Anglican Minister. According to his mokopuna Jenny Quince, during his lifetime
Marsden saw no difficulty in combining the roles of rangatira, tohunga and priest in the service of his people.
Interview with Rev. Quince at Auckland, 6 November 2005.
58
M Marsden, ibid at 11 and 33.
54
-
Spirit is ubiquitous, imminent in the total process;
Upholding/sustaining/replenishing/regenerating all things by its Hau or Mauri (Breath or Lifeprinciple);
-
As a corollary of the above, the All is One and interlocked together;
-
Man is both human and divine an integral part both of the cosmic process and of the natural
order;
-
The Maori approach to life is holistic. There is no sharp division between, culture, society and
their institutions.
Because of his holistic approach the Maori avoids the disjunction between the secular and
spiritual, the compartmentalisation and isolation of one institution from another.
Marsden’s theory of reality being “spirit-based” is similar to that of Maori elders from
other areas of Aotearoa/New Zealand and is closely aligned to that of the tohunga whose
knowledge was recorded by early Pakeha writers.59 Further elaboration of Marsden’s
theory is provided in his description of “Maoritanga” as being “about the corporate view
that Maori hold about ultimate reality and meaning”.60
The Maori does not, and never had accepted the mechanistic view of the universe which regards it
as a closed system into which nothing can impinge from without. The Maori conceives of it as at
least a two-world system in which the material proceeds from the spiritual, and the spiritual
(which is the higher order) interpenetrates the material physical world of Te Ao Marama.61
Two important points are made by Marsden: First, that the “universe is not static but is a
stream of processes and events”62. So what might appear from the outside to be a rigid
unchanging format actually masks a reality in which change is constant. This is
reinforced by his second statement that “history is not cyclical but lineal – it is an
59
G Grey, Polynesian Mythology and Ancient Traditional History of the New Zealanders, Whitcombe & Tombs,
Auckland, 1906; H Beattie, Tikao Talks, AH and W Reed, Wellington, 1939; C Servant, Customs and habits of the
New Zealanders 1834-42, ed D Simmons, AH and W Reed, Wellington, 1973; J White, The Ancient History of the
Maori, His Mythology and Traditions, Government Printer, Wellington 1887; Lore of the Whare Wananga, trans.
SP Smith, Polynesian Society, New Plymouth, 1913.
60
Marsden, supra note 18 at 144.
61
Ibid at 160.
62
Ibid at 162.
55
ongoing process”. This reference, which may otherwise appear to contradict his prior
statements, makes sense in the context of a whakapapa process in which: 63
… each man is an event within the on going procession of nature and so is each created object.
Man withdraws from the mainstream of the universal process by returning to the spirit realm of
Hawaiki, there to continue a spiritual existence after the pattern of the earthy one.
The idea of a universal process in which change and development is a natural part,
reinforces the need to look beyond the practices observed by the early Pakeha writers to
trying to understand the concepts and principles that gave rise to, and upheld them.
Some contrasts can be drawn between Maori beliefs and standard western Christian
spiritual beliefs that have helped shape the New Zealand legal system. The moral
precepts of “good” and “evil” that emanate from a single God and Devil who are locked
interminably in a battle for human souls, popularised by some European versions of
Christianity, is absent from Maori philosophy. Responsibility for human fortune and
misfortune is more evenly distributed amongst the many deities known to Maori.64
Rather than making a stark distinction between “good” and “evil”, Maori attribute
distinctive character traits and realms of existence to specific deities. The principal
connection between these deities and humans is via the concept of “mana” – the power
and authority invested in a realm by its deity – the violation of which can invite negative
repercussions for any human offender and his or her relatives. The notion of collective
responsibility amongst families, led to great care being exercised in the conduct of daily
activities. As a consequence, within Maori society, the closest parallel to notions of
“good” and “evil” that can be made is that actions that reinforced family links and the
mana of atua were seen as “good”, whereas actions that undermined them were
considered to be “bad”.
63
64
Ibid.
“Whiro” and “Aitua” are two deities who are specifically linked to bad fortune.
56
Another notable difference, according to Marsden, is that Maori have an afterlife that is
far more benevolent than that of Christians, devoid as it is of notions of Heaven or Hell:65
The idea of rewards and punishment was not developed by the Maori except in the limited sense of
the super-heroes and demi-gods dwelling with the gods in Hawaiki Nui.
So for Maori, regardless of one’s behaviour in this life, there is an assurance of being
reunited with your relations after death. This belief is reinforced in the whaikorero
(formal speeches) made on the marae at the beginning of all official Maori gatherings.
Thus, Maori thinking extends family relationships beyond physical life, to include death
and the hereafter, as part of ordinary daily living. The Maui traditions recorded by Grey
show that the fear of retribution, accountability and damnation in the afterlife were absent
from Maori thinking – after death the beliefs recorded show that life remained family
centred and continued in much the same fashion as before death.66
Furthermore, although the idea of a “supreme being”, and a “will” responsible for
ordering creation is present in Marsden’s Io theory, it seems to be more concerned with
the process of creating than with monitoring activities and sorting out the trials and
tribulations of what it creates. 67
Further … the universe itself is a process or event within the cosmic process by which Io orders
creation. The ultimate reality, therefore, is Io, and the expression of this reality is the cosmic
process in which all things are immersed and find their reality. So the temporal is subordinate to
the eternal, the material to the spiritual, for the situation below is ordered by an ideal
determination from above by Io as origin of the cosmic process.
65
Marsden, supra note 18 at162; This is also pointed out by Te Rangi Hiroa in, The Coming of the Maori,
Whitcombe and Tombs Ltd, Wellington, 1949, 516.
66
G Grey, The Legend of Maui, Polynesian Mythology and Ancient Traditional History, H Brett, Auckland 1885,
10-35.
67
Marsden, supra note 18 at 162.
57
There are several other versions of the Io theory of ultimate reality, which set out a
variety of originating points and jobs for Io. According to Ngai Tahu tohunga, Teone
Tikao:68
Io was the supreme god of the Maori. … He is far and away the greatest of our many gods, and it
was through his act of creation that the other gods appeared, as comes out in the history … .
Kahungunu tohunga, te Matorohanga, stated that there was only one source of all things,
“Io-Matua”, who has 14 associated omni aspects and qualities.69 Wiremu Mahupuku,
another tohunga from Kahungungu,70 says that after Io had completed his work of
creating the world he divorced himself entirely from the doings of humans and lived in
isolation above the topknot of Rangi. Rose Pere, a Tuhoe tohunga, says simply that
“Papa and Rangi are the universe” and that their children are “supernatural beings
possessing strange powers”. One of these children, Tane, possesses both spiritual and
earthly characteristics, and transmits the divine seed of life from “Io-Matua-kore the
supreme spiritual being” to his offspring.71 Ngapuhi Wananga uphold Io traditions
similar to Ngati Kahungunu.72
A debate has arisen amongst Maori theologians and academics as to whether Io was part
of pre-contact Maori philosophy or a post-contact invention aimed at aligning Maori
philosophy with Christianity. According to Ngapuhi kaumatua and academic, Pat
Hohepa, the idea of a single Christian God has infiltrated Maori traditions and tikanga
with assistance from several Maori academics who have been “theologically
brainwashed”73 into interposing good and evil, and angels and demons into Maori
thinking and then drawing analogies that do not fit with earlier Maori traditions. Te
68
Beattie, supra note 59 at15.
Smith, supra note 59 at110-111.
70
H Mahupuku, Whakapapa Tupuna, private manuscript on file with author, 17.
71
R Pere, Ako – Concepts and Learning in the Maori Tradition, University of Waikato,Hamilton, 1982, 8.
72
Marsden, supra note 57 at 73-79; MP Shirres, Te Tangata the human person, Auckland, Accent Publications,
1997, 113-119.
73
P Hohepa, “Te Tiimatanga Mai, nga Kupu, me nga Tikanga Whenua”, seminar on Maori Land Law, Faculty of
Law, Auckland, 23 June 1994.
69
58
Rangi Hiroa, (1877-1951) also doubted that Io predated European arrival in Aotearoa.74
Hiroa believed that the concept of Io was “a local development in New Zealand and
apparently originated with the Kahungunu tribe, from which rumours of the cult spread to
a few other tribes”.75
The views expressed in the Io debate exemplify the difficulty of trying to establish firm
parameters for concepts at a given time, and the impossibility of verifying belief systems.
Michael Shirres, wrote a Doctoral thesis on karakia (Maori rituals),76 in which he
reviewed all the references he could find to “Io” in written literature. He concluded that
Io was a genuine pre-contact entity known to Tai Tokerau Maori, which established “the
first principle and foundation for all other knowledge”.77 Manuka Henare, in his doctoral
thesis, The Changing Images of Nineteenth Century Maori Society - From Tribes to
Nations,78 also concludes that the Io tradition is authentic and pre-dates the influences of
christianity. One benefit of the belief in a single originating source known as “Io” is that
it provides an ultimate point of unity between Christian and Maori beliefs about ultimate
reality. Once the Tohunga Suppression Act had outlawed the practice of tohungaism,
Christianity offered another vehicle for legitimating Maori spiritual beliefs, which was
both acceptable and held status within Pakeha society. In this thesis, material relied upon
as Tohunga information is taken from Maori Marsden, an Anglican Priest, and Henare
Tate, a Catholic priest, neither of whom sees a conflict in the dual roles they occupy.
Hiroa, on the other hand, who was from Ngati Mutunga of Taranaki, says the source of
the Io school of thought is Kahungunu iwi. However, Kahungunu was originally from
Kaitaia in the Tai Tokerau area. He traveled widely, as did his father Tamatea, who
74
TR Hiroa, The coming of the Maori, Whitcombe and Tombs Ltd, Wellington, 1949, 526-536. A similar view is
expressed by JP Johansen, Studies in Maori rites and myths, Ejnar Munksgaard, Copenhagen, 1958; Early
Missionary, Richard Taylor also says “properly speaking the Maori had no idea of a supreme Being”. R Taylor, Te
Ika a Maui, Wertheim and MacIntosh, London, 1855, 13.
75
Hiroa, ibid at 536.
76
MP Shirres, An Introduction to Karakia, Unpublished PhD thesis, Auckland University, 1986. Shirres is guided in
his research by kaumatua from the Tai Tokerau area, including Maori Marsden, who is an adherent of the Io theory.
77
Shirres, supra note 72 at 107-119.
78
M Henare, The Changing Images of Nineteenth Century Maori Society - from tribes to nations, thesis submitted in
fulfilment of the requirements for the degree of Doctor of Philosophy in Maori Studies, Victoria University of
Wellington, August 2003, 68-75.
59
circumnavigated Aotearoa. It is possible that knowledge of Io was originally brought
into the Wairarapa area from Tai Tokerau by the tohunga who accompanied Tamatea and
Kahungunu on their travels. This would explain the link between the Tai Tokerau and
Wairarapa wananga and the similarity in the Io tradition. But it remains conjecture and
does not explain why Tuhoe and South Island tohunga also hold to the Io tradition.
An important point to note is that, despite disagreement about the origin and existence of
Io, all proponents are united in agreeing that the central, originating point for discussions
about Maori reality is “Wairuatanga” or spirituality. From this principle source and
primary cause all things conceivable, including thoughts, emotions, intellect and the
physical world, are held to emerge.79
According to Pere, at the working end of the discussion where cause takes fruition in
actuality, “wairua”, is a symbolic reference to a physical world that is immersed with that
of the spiritual.80 Thus, all actions and natural things have both physical and spiritual
aspects, the spiritual component being internalised at conception. Viewed in this way
wairua becomes a passive spiritual backdrop against which all activity occurs. However,
wairua was also acknowledged as being actively engaged in all human activity.81 In this
latter sense it is better viewed as a guiding force and source of power impelling activity.
Both of these aspects of wairua are apparent in Maori thinking and conceptualisations of
reality.
Over 150 years of exposure to European ideas and beliefs has not displaced the
widespread Maori belief in a pervasive spirituality underpinning reality. It remains
firmly entrenched in modern Maori philosophical thought. According to Marsden: 82
Whether this orientation is articulated or not, it remains the subconscious attitude of the Maori and
is reflected in his whole mode of thinking and the expression of it in his language and its structure.
79
The term “wairua” is used here in a broad philosophical sense. It is not referring to the “non-physical human
body” that Maori also call “the wairua”, or to “ghosts”, which are also known as “kehua”.
80
In the Maori language “Wai” means water, “rua” means two. Pere, supra note 71 at 10.
81
Ibid at 13.
82
Marsden, supra note 18 at 162.
60
Today the energy and dynamism of Wairua is constantly reaffirmed and reinforced at
Maori gatherings on the marae:83
When Maori people assemble on the Marae, and especially in the Whare Whakairo, they are, in
essence, returning to their roots and to the source of their being. They congregate in the bosom of
the house to be instructed on tribal matters and to be rejuvenated in spirit by being among their
ancestors. Many Maori will travel from miles around on the occasion of the death of kin or for
some other hui or meeting. … When they enter into the whare whakairo they virtually cut
themselves off from the outside world and concentrate on the revitalising aspect of their
experience there in order that they can later return to face the outside world with a new zest for
life.
What then is Wairua? Wairua is Maori existence writ large. An analogy can be drawn to
the air we breathe in that we take the existence of both for granted. We cannot see, touch
or smell either. But for Maori, both are essential parts of existence, one physical, the
other spiritual, the former being derived from the latter.
(c)
The Importance of the Maori Creation Stories
The Creation Stories are important to the fundamental thinking of Maori people. They
serve as an explanation of existence, of those things that cannot be physically measured,
by answering the ultimate questions humans have asked throughout time – who am I?
and – where did I come from?
For Maori, the answer to these questions lay in explanatory narratives, which began with
an ultimate “Wairua” source that contained both active and passive elements of existence,
and which, through a series of events, developed into the modern world of physical
matter and spiritual substance that exists today.
According to Ranginui Walker, important information and the mores of Maori society
were conveyed simply and easily to successive generations of Maori by way of the
83
C Barlow, “Te Wheiao ki te Ao-Marama - Worlds in Transition”, unpublished paper presented at Archeology
Conference held at Auckland in July 1984, 9.
61
creation stories.84 Personification allowed important values associated with various
aspects of the natural world to become inculcated into society. The various stories set
precedents and standards for behaviour, as well as highlighting important relationships
that had to be upheld and reinforced. Retelling of stories meant that human relationships
and relationships between humans and other parts of nature were constantly being
reinforced through acknowledgement. In a society without written language, this method
of knowledge transferral was extremely successful in maintaining cohesion amongst
members of the group and between successive generations.
For the purposes of this study, the creation stories explain the origin of the concepts and
principles that derive from a Maori worldview. They also exemplify how those concepts
and principles fit together and operate as part of a coherent whole. In so doing, they lay
the foundation from which all Maori thinking about relationships between things,
whether abstract or material, is organised as a series of ongoing family links between
ancestors and descendants, with the boundary between life and death being of a
temporary, temporal nature, only.
(d)
Nga Kete Tuatoru – The Three Baskets of Knowledge
A different approach to understanding Maori spiritual concepts through the examination
of Karakia (ritual) has been undertaken by theologian, Michael Shirres.85 His research
was of around 400 karakia (prayers) written in the early to mid 1800s. His analysis is
open to the caution that he, like other Pakeha who have written about Maori, might lack
the conceptual background necessary to properly appreciate the material he was dealing
with. A stronger caution could be that as a Catholic priest already entrenched in
Christian dogma, he may have unwittingly transposed this thinking into his Maori
research. On the other hand, it can also be argued that intimate knowledge of one
spiritual belief system provides a greater impetus for gaining access to another, and that
the difficulties in understanding faced by earlier Pakeha writers made him more aware of
84
85
Walker, supra note 53 at 11-23.
Shirres, supra notes 72 and 76.
62
the need to tread carefully when examining another worldview. The best guarantee of
reliability lies, however, in the fact that Shirres’ research analysis is heavily reliant on
key Maori informants, including Ngapuhi kaumatua, Maori Marsden and Henare Tate,
both of whom are widely accepted as Ngapuhi authorities on tikanga Maori.
It is of note that Marsden and Tate were also priests, and therefore, similar criticisms
could be levelled at Marsden and Tate as have been made of Shirres. However, one
difference is that both men grew up in rural Maori communities amongst their own
people and were heavily enculturated into tikanga Maori at a very early age. The
decision to become a priest later in life has never dulled the separate role each has played
within Tai Tokerau Maori society and their acceptance amongst their own as being an
authority on Tikanga Maori, independent of their Christian leanings.
According to Shirres there are three sources of Maori knowledge: what we experience
with our senses; what we understand as upholding our sense experience, and our
experience of our relationships with each other and the past that he calls “oneness”.86
These sources are contained in Nga kete tuatoru, the three baskets of knowledge. Shirres
sources his knowledge of the three baskets of knowledge in the wisdom passed to him by
Marsden,87 Similar statements are found in the Maori oral traditions written down by H.
Whatahoro from the teachings of the Kahungunu tohunga, Te Matorohanga and Nepia
Pohuhu, who were born in the early 1800s.88 According to Shirres, the first kete, Aronui,
contains what we perceive with our senses; the second, Tuauri, our understanding of the
‘real world’ that lies behind our everyday perceptions, and the third, Tuaatea, knowledge
beyond space and time that is only accessible through ritual.89
The content of the first kete, Aronui, is similar to western understandings of natural
phenomena and the laws of nature apprehended through the senses. Within this kete the
86
Shirres, supra note 72 at 16.
M Marsden, supra note 57 at 73-79;
88
In the Matorohanga transcripts the three kete are differently named, being kete-ururu-matua, kete-uruuru-rangi and
kete-uruuru-tau, and the contents are differently ordered. SP Smith, supra note 28 at 130.
89
Shirres, supra note 72 at16; Marsden, supra note 57 at76-79.
87
63
development of western technology and scientific methodology has fine-tuned what can
be observed using our senses:90
This is the source of all knowledge about the world and the things contained therein, including
fishing, astronomy, carving, weaving, building, medicine, entertainment, and every subject taught
in our modern educational institutions.
The second kete, Tuauri, is described by Marsden as “the ‘real world’ behind the world of
sense perception of the natural world”.91 Although this has a Platonic resonance to it, it
is closer to an expanded idea of the western concept of a pervasive spirituality than to
Plato’s conception of ‘real forms’ existing for all things. Into this basket can be placed
the concepts, principles and values that form the intellectual framework of Maori thinking
and understanding of a universal nature.
The third basket, Tuaatea, contains the knowledge by which all the relationships
recognised by Maori were capable of being enhanced and diminished through the use of
appropriate ritual: 92
The idea of manipulating environment is based on the Maori view that there are three orders of
reality – the physical or natural, the psychic and the spiritual. Whilst the natural realm is normally
subject to physical laws, these can be affected, modified and even changed by the application of
the higher laws of the psychic and spiritual.
Physical phenomena and the energy sources that motivate and uphold the physical world
in the first two kete, together form the two-world system that Marsden, one of Shirres’
key informants, refers to in his writing.93 The third basket contains the enabling rituals by
which transition between stages is managed at a spiritual level.94
90
C Barlow, “Light and Knowledge” in Introduction to the Foundations of Maori Psychology, Department of
Psychology, University of Auckland, 1994, 2; Marsden, supra note 57 at 61.
91
Marsden, ibid at 60.
92
Marsden, supra note 18 at 121. A similar sentiment is expressed by T Paraone in “A Maori Cosmogony”
(translation by Hare Hongi) in Journal of the Polynesian Society, Volume XVI, Whitcombe and Tombs, Wellington,
1907, 108.
93
Marsden, supra note 18 at 160 and Shirres, supra note 72 at 26.
94
Shirres, ibid at 88.
64
At this level of understanding, in the world of the spiritual powers and of ritual, time and place
come together … the past is moving in the time of the ‘eternal present’.
According to Marsden, Tuaatea “is the world beyond any space-time framework”.95 The
knowledge by which entry could be gained into this realm was closely guarded and
taught to only a chosen few in Wananga. According to Hauraki tohunga, Tiwai Paraone,
of Maru-tuahu iwi, ritual enabled individuals to craft the spiritual essence of the world to
their own use through the understanding that the world operated in accordance with a
series of repetitive patterns. New situations were interpreted by reference to the cycles
that existed in nature and ritual served to integrate the new information into what was
already known:96
There are three very important applications of those original sayings, as used in our sacred rituals.
The first occurs in the ritual for implanting a child within the barren womb. The next occurs in the
ritual for enlightening both the mind and the body. The third and last occurs in the ritual on the
solemn subjects of death, and of war, of baptism, of genealogical recitals, and such like important
subjects, as the priests most particularly concerned themselves in.
The words by which Io fashioned the Universe – that is to say, by which it was implanted and
caused to produce a world of light – the same words are used in the rituals for cheering a gloomy
and despondent heart, the feeble aged, the decrepit; for shedding light into secret places and
matters, for inspiration in song-composing, and in many other affairs, affecting man to despair in
times of adverse war.
The various tohunga interviewed by early Pakeha writers note that much of this learning
has not been passed on to post-contact generations of Maori. According to Nepia Pohuhu
of the East Coast, that which has been passed on has been debased by the presence of
Europeans:97
95
Marsden, supra note 57 at 62.
Paraone, supra note 92 at 114.
97
Smith, supra note 28 at 160.
96
65
In these days of the white man, everything has become void of tapu; and, hence it is that the
learning of old is gradually becoming lost. We never wished that these [sacred] things should fall
into the white man’s hands, lest our ancestors became a source of pecuniary benefit. All that the
white-man thinks of is money; and for these reasons this ancient knowledge of ours was never
communicated to the Ministers and Bishops.
As later generations of Maori in the Tai Tokerau region did attend Wananga, and some,
like Marsden, also became Anglican priests, either the institutions that existed in the East
Coast were far more rigid in process than those in the north, or, given the difference in
time between writers, these rules were relaxed as time passed.
According to Shirres and Marsden, a three kete model of the universe has parallels with
modern physics and quantum mechanics in that both have a beginning from nothing,
develop and expand over time, and highlight consciousness and the fundamental
importance of energy.98
A Nga-Kete-e-Toru model offers a key to understanding Maori intellectual processes of
compartmentalising concepts. It creates divisions between the different types of
knowledge known to Maori during the pre-contact period, some of which, according to
Pohuhu, is no longer available. Inside the first kete rests the natural laws that are
discernable from visual observation. Advances in western technology have allowed us to
gain more information about how these laws operate. In the second, lies the concepts and
principles that uphold a Maori worldview. This kete contains the intellectual knowledge
that underlies the Maori understanding of reality. In the third is the ritualistic knowledge
that enables individuals to move between dimensions and alter states of being, knowledge
of which held the whole Maori universe together. In pre-contact Maori society, rangatira
and tohunga, as the principle decisionmakers of a group, held this knowledge.
98
Marsden supra note 57 at 30-31; Shirres, supra note 72 at 88.
66
(e)
Conclusion
Most research about Maori society is anthropological in nature and has not focused on the
basic constituents of the processes that underpin Maori thinking. Therefore, the
significance of wairua and the creation stories in Maori thinking has been overlooked and
their strength as the basis of Maori custom law has, accordingly, been read down. Hiroa's
attempt at rationalising Maori thinking, and Hohepa's cautionary approach alerts us to the
possibility that mixing of tikanga with Christianity may have produced a merged point of
ultimate reality. There is no doubt that, since colonisation, Christian thinking has
affected tikanga. But the extent is unknown. Notwithstanding these critiques, Barlow as
a Psychologist and Marsden as a Philosopher, offer modern, Tai Tokerau insights into
Maori conceptualisations and build the base of our understanding about Maori thinking
further. Shirres, assists this process by employing an emanuensis style of writing in order
to maintain the integrity of his sources.
The Maori worldview stresses the importance of te Ao Wairua (the spiritual realm) as
being the source of all things. From that source wairua reaches out and permeates
everything else. The creation stories provide a structure for the evolution and
development of all things from the wairua source through to physical existence. This
creative process of development provides the blueprint for all thinking about relationships
as being inseparably linked and familial in nature. Within this framework, nga kete
tuatoru allow us to compartmentalise knowledge according to its different purposes. The
first contains “natural, observable laws” that exist independent of humans and in
accordance with the cycles of nature, the second kete contains the concepts and principles
that underpin our understandings of the relationships that link everything together, and
the third deals with the ritualistic knowledge that creates and influences change.
67
3.
KEY CONCEPTS/PRINCIPLES UPHOLDING A MAORI WORLD VIEW
(a)
Introduction
Although Pakeha writers in the1800s and early 1900s collected a lot of information about
Maori concepts, they did not appreciate their worth as jural constructs. They tended to
treat them as quaint remnants of a swiftly vanishing past that had little relevance in a
European world. While Maori tohunga were giving out vital information in order to
preserve precious knowledge about ways of thinking and viewing the world that included
jural guidelines – Pakeha were recording “myths” and “curiosities”. Far more emphasis
was placed on the practices observed within Maori society than on the principles that
underpinned those practices.
Both Durie and the Law Commission identify a number of core values, concepts and
principles considered to be fundamental to Maori custom law. Durie draws on over 20
years experience as a Maori Land Court judge and Chairman of the Waitangi Tribunal.99
In order to be effective under existing New Zealand law, both forums require members
who have a knowledge of Maori custom law. The Maori Land Court operates according
to a mixture of New Zealand statute law and Maori custom law principles and practices
that have been codified by legislation. Its principal Act is Te Ture Whenua Maori Act
1993 and its predecessors. The Waitangi Tribunal process focuses around te Tiriti o
Waitangi/Treaty of Waitangi and, particularly, on “rangatiratanga” and “taonga” as Maori
custom law concepts protected by the second article of Te Tiriti o Waitangi (Maori
text).100
Durie’s writings mark a new era in the definition of Maori custom law. He sets out the
beginnings of a coherent system of modern, Maori custom law that is principle-based and
evolving rather than being restricted to practices observed by Europeans at 1840. Durie
99
The Waitangi Tribunal was established under the Treaty of Waitangi Act 1975, to hear claims from Maori against
the Crown for breaches of the Principles of the Treaty of Waitangi, a covenant signed in 1840 by over 500 Maori
hapu and William Hobson, representing the British Queen.
100
See Appendix 1.
68
is careful not to venture beyond viewing Maori custom law as more than a loose
assemblage of “values, concepts and principles” drawn from a wider “tikanga Maori”
worldview. He postulates no particular order or hierarchy of principles. Marsden assists
the process of constructing a modern framework of Maori custom law by setting out a
philosophical framework within which it can exist.101
Knowledge has always been highly valued in Maori society and important knowledge
was restricted to selected individuals within a group. In today’s world, however, where a
Maori worldview competes for existence with other worldviews, such preciousness
cannot be maintained if Maori custom law is to continue to have relevance. Maori
custom law needs to be set out as a complete process, with a framework that is clearly
articulated and widely understood. This is an important step in the process of updating
Maori custom law to meet the needs of a modern world.
In this part of my study, I identify five fundamental concepts of tikanga Maori that
inform a modern system of Maori custom law and indicate how they fit into a custom law
framework. These concepts are Whakapapa, Whanaungatanga, Mana, Tapu and Mauri. I
have included the concept of “mauri” (life-force), even though it is not referred to in the
Papatupu Hearings that form the heart of my research archive, because it is a fundamental
aspect of existence that provides all the other principles of Maori custom law with
coherence and relevance. In my understanding, which I will flesh out in later discussion,
without the presence of “mauri” as the principle of “life”, the other four principles have
no reason to exist.
(b)
WHAKAPAPA
In a mindset that held Wairua to be the raw material and principal component of the
Maori universe, the organising principle that held that universe together was Whakapapa.
101
Marsden, supra note 57.
69
According to Marsden the creation stories conveyed an understanding of the underlying
structure of reality as a process of ongoing development:102
the ancient Maori seers, like the later modern physicists, created their sets of symbols to provide
them with their maps/models to portray each state in this evolutionary process. These
representations were the means by which they could elucidate the various worlds; and grasp what
they perceived as ultimate reality.
There are three ways in which Whakapapa can be usefully employed as part of a Maori
mindmap: first, it provides an ordered process within which other ideas and concepts can
be structured into a coherent format; second, it acts as a vehicle for the conveyance of
wairua to the rest of creation, and third, it establishes a hierarchy of authority as a
guideline to the formation of all relationships.
i.
Whakapapa as a Process
The concept of Whakapapa sets the basic structure for Maori thinking as a progression
through a series of incremental stages. According to Walker, “the ideas of orderliness,
sequence, evolution, and progress” are implicit in the meaning of whakapapa.103 The idea
of “orderliness” is also present in the several meanings provided for “whakapapa” in the
Williams Dictionary, which include “lie flat”, “place in layers, lay one upon another”,
“recite in proper order genealogies, legends, etc.”104
It is common to describe the whakapapa process either as one of genealogical descent or
as a process of “layering” in which each new layer augments that which it succeeds. In
this respect Whakapapa can be seen as a global, all-embracing concept linking the stages
by which systematic augmentation occurs in Maori thinking. As such, it acts as a
guideline for the logical sequencing of related events.
102
Ibid at 9.
R Walker, Nga Pepa a Ranginui, Penguin Books, Auckland, 1996, 13.
104
HW Williams, Dictionary of the Maori Language, 7th Edition, BP Publications Ltd, Wellington, 1992, 259.
103
70
This sequencing of events uses the “creation stories” as a precedent for all other
relationships. As Walker points out, this methodological approach enabled important
information to be easily passed from generation to generation by weaving it into a
whakapapa narrative.
Sir George Grey translated the story of “Rangi and Papa” which has become the standard
New Zealand creation story, from te Arawa rangatira, Wiremu Te Rangikaheke’s original
Maori text written down in 1849.105 Although there are several other explanations of
existence held by various iwi throughout Aotearoa,106 they employ the same structure of
recitation. The process begins with an orginal source that is sometimes referred to as
“Io” and sometimes simply as “wairua”. Irrespective of nomenclature, the source is held
to contain the potential for all existence and being. Within the source developments take
place and various named epochs emerge. Each epoch augments that which precedes it.
The sequence unfolds as a continuous process, until finally, the natural world and humans
are produced.
This process of incremental development is reflected in the whaikorero (formal speechmaking) heard on marae. Speakers often use metaphoric narrations depicting various
stages of augmentation – the development from spirituality, to potential for existence, to
gestation, and then birth – the physical growth of a plant from a single main taproot to an
adult tree – the gradual movement from darkness into daylight – the weaving of an
intricately patterned whaariki, in order to structure ideas and convey information to their
listeners.107 This process of transferring knowledge presupposes an awareness of the
stories to which the speaker is referring amongst one’s audience and the ability to place
language in context. Understanding is facilitated by the carvings inside the meeting
house, which provide a visual aid to interpretation.
105
Grey, supra note 59.
Shirres, supra note 72 at 23-28.
107
Marsden, supra note 18 at 216-217; Shirres, ibid at 23-26.
106
71
ii.
Whakapapa as a Vehicle for Conveying Wairua
Widespread acceptance of the concept of whakapapa as an ordering principle meant that
nothing was disjointed in the Maori mind. Everything had a prior cause and explanation.
All things were related, however distant that relationship may be and could be linked
back to the wairua source. The process of whakapapa acted as a vehicle for conveying
wairua from the original source into all other aspects of existence. In the physical world
of sense perception, the whakapapa process can be viewed as the enabling device by
which wairua was able to permeate all things:108
Whakapapa is the genealogical descent of all living things from the gods to the present time. …
Everything has a whakapapa: birds, fish, animals, trees, and every other living thing; soil, rocks
and the mountains also have a whakapapa.
Everything has its own form of life; everything has a spirit. Io is the origin of all things – the spirit
and the life and the form.
109
In 1855, Taylor recorded that the degree of thought perceptible in the Maori creation
traditions marked a culture far more advanced than was readily apparent from the pretechnological social conditions in which Maori lived.110 Linking lack of technology to
mental backwardness was not uncommon amongst the early writers. In this instance the
observation was made with regard to the whakapapa process Taylor had recorded
outlining the gestation of thoughts, ideas and reasons towards conclusions emerging from
the Wairua, in the first of six epochs that eventually led to the creation of the physical
universe:111
108
Na te kune te pupuke
From the conception the increase
Na te pupuke te hihiri
From the increase the thought
Na te hihiri te mahara
From the thought the remembrance
Na te mahara te hinengaro
From the remembrance the consciousness
C Barlow, Tikanga Whakaaro, Key concepts in Maori culture, Oxford University Press, Auckland, 1996, 173.
Smith, supra note 28 at 107.
110
Taylor, supra note 74 at 14.
111
Ibid at 14-15.
109
72
Na te hinegaro te manako
From the consciousness the desire
This “thinking” epoch preceded others in which “night”, “light”, “physical existence”,
“land” and “the gods” came into being. The recitation depicted long periods in which Te
Kore (nothingness) and Te Po (darkness) existed before light finally dawned and
produced the world of sense perception. The way Maori depicted the emergence of the
world as we know it, led Marsden to suspect that Maori had traditionally organised their
thinking in accordance with a three-world view, of potential being symbolised by Te
Korekore, the world of becoming portrayed by Te Po, and the world of being, Te Ao
Marama.112
According to the Io tradition, … Te Waipuna Ariki … is the fountain through which the primal
energy of potential being proceeds from the infinite realms of Te Korekore through the realms of
Te Po into the world of light (Te Ao Marama) to replenish the stuff of the universe as well as to
create what is new. Thus it is a process of continuous creation and recreation. Te Korekore is the
realm of potential being. Te Po is the realm of becoming and Te Ao Marama is the realm of being.
…113
Barlow holds a similar view to Marsden, but calls the intermediary phase “te wheiao ki te
ao-marama” which he translates as “worlds in transition”:114
… the meaning of ‘world’, as I intend it, is not limited to the general meaning of ‘this earth and its
inhabitants’ or some other sphere or entity within the cosmos, but it also refers to places and states
(and actions to a limited degree). In addition, states, or states of being, incorporate physical,
psychological and spiritual dimensions (worlds), which undergo change at various levels within
these dimensions, and in other situations, inter-dimensional changes.
The use of the word ‘transition’ … intimates change and in particular, the change experienced or
enacted in moving from one state or condition to another.
112
Marsden, supra note 18 at 160-161.
Ibid at 161-162.
114
Barlow, supra note 83 at 1.
113
73
These traditions and korero give us an understanding of how Maori thinking processes
have been developed in alignment with the stages set out in the creation stories.
Following the journey of the Wairua into different states of being also gives us an
understanding that change is a natural part of Maori existence. In its second aspect,
therefore, Whakapapa acts as a symbolic reference to a material world that is infused with
wairua.
iii.
Whakapapa as a Hierarchical Process of Authority
Maori thinking attributed value and importance to prior causes and invested them with
authority. In the metaphysical world portrayed in the creation stories, “Io”, “Wairua”,
“Rangi and Papa” stood at the apex of authority. They were followed in the process by a
series of Atua (deities) who held authority over various physical realms. In some korero
these atua were posited as discrete entities with specific spheres of influence, in other
korero jurisdictions overlapped. The atua possessed diverse personalities, with negative
as well as positive characteristics. There is no definite number of atua, although the Grey
writings state that they are all male.115 Insufficient material exists to work out why this is
so, although Grey’s principal informant, Te Rangikaheke, was from Te Arawa, an iwi
with a strong adherence to the importance of the male role in traditional practices.
Iwi had their own atua. Some, such as Rangi and Papa, were shared amongst several
groups. As the principal regulators of natural phenomena and protectors of the world,
atua were a natural source of authority outside of human control and were to be respected
if not feared. The belief that each thing existed in its own realm, possessed wairua, and
was under divine protection was a serious constraint on human behaviour.
However, the respect due to the atua as the ultimate ancestors and the source of one’s
own origin, authority and power, did not mean that it was always given. The conflict
between the children of Rangi and Papa established a hierarchy amongst the various atua,
which transferred over to their descendants in the physical realm. The ongoing contest of
115
Grey, supra note 59 at 1-9.
74
authority meant that Maori took little for granted. Ritual was often used to mediate
human actions viewed as intruding into the realm of the various atua and upsetting an
already precarious balance.
In human whakapapa, ancestry acted as a primary indicator of individual authority. In
common parlance, “Whakapapa” as a noun referred to the specific ancestry of an
individual or group of individuals. Terms such as “tatai” and “heke” were used to denote
this application of the whakapapa process to produce pedigree lineages of a private,
individualistic nature. Whakapapa not only linked specific individuals, it also clearly
delineated who was not part of that lineage. It was a method of determining inclusion
and exclusion in a group. And it was immutable in that no individual could determine
their own ancestry or alter it, Whakapapa was the ultimate fact that made descent both
rigid and lineal:116
By descent, we refer, firstly, to the implicit or explicit claiming of descent from the acknowledged
founder of the hapu, Tuperiri (through either parent in any one generation) to justify the right to
live in Orakei. Secondly, and within the hapu, we apply the term to the criterion used to define
membership in those factions whose own particular founders were the sons of Tuperiri. The hapu
and its constituent factions are thus descent groups in the strict sense.
Despite this, there was also flexibility associated with whakapapa lineage in that it was
possible to stress descent from one line and not another, as particular circumstances
demanded. In this way one could remain true to one's genealogy while not being
constrained by it. Treated thus, whakapapa was also a malleable, inclusive mechanism
that enabled individuals to follow the most advantageous line, according to need.
In a paper discussing Tikanga Maori, anthropologist, Joan Metge highlights selfidentification as the main factor in deciding who is “Maori”. She states “there has to be
some indication of ancestry (the name of a Maori ancestor or physical features) for a
person’s identification as Maori to be accepted by other Maori, but with that proviso I
116
IH Kawharu, Orakei, A Ngati Whatua Community, Wellington, NZ Council for Educational Research, 1975, 22.
75
argue that a Maori is a person who identifies as such.”117 This is reinforced by a further
statement that “identity is too personal an issue … to be decided by any but the person
concerned”.118
Lineage was extremely important to Maori society at the time of contact and is still the
principal indicator of belonging to a group. Identity is not a private matter. It is a matter
of public record and knowledge amongst Maori. In a community defined by whakapapa,
how an individual feels is largely irrelevant compared to how the community of which he
or she is a part perceives him or her according to their own criteria of assessment. The
inclusion of “whangai” (adoptive children), “in-laws” and others who are blood strangers,
as central parts of a community, would strain the principle of “whakapapa” beyond its
traditional limits. Blood strangers can be included within a group by employing the
principle of “whanaungatanga”, also an organising principle, without the need to do
violence to the principle of “whakapapa”. The blurring of the boundary between the two
principles that sometimes occurs, highlights the need for more clarity in setting the
conceptual boundaries between the various principles of Maori custom law.
iv.
Conclusion
The concept of Whakapapa provided the intellectual framework within which Maori
thinking about the world as a combination of spiritual and physical phenomena could
develop in an orderly fashion. The whakapapa process meant that Maori emphasised
continuity and augmentation in their thinking and reasoning about the world. Whakapapa
provided a logical order for the development of thinking about the universe, its
construction and composition. As a conveyancing mechanism for wairua, whakapapa
provided the means by which other substantive concepts such as mana and tapu
(discussed later in this Section) could emerge as integral part of existence and essential
117
J Metge, “Succession Law: Background Issues Relating to Tikanga Maori”, Report For the New Zealand Law
Commission, 1995, 1.
118
Ibid. Metge is clear in her view that Whakapapa is a fundamental requirement for inclusion as part of a group.
Personal communication, 29 April 2005.
76
components of Maori custom law. As a system of hierarchy, whakapapa also provided a
process from which power and authority could be derived through ancestral connections.
77
(c)
WHANAUNGATANGA
(i)
Introduction
Oral and written accounts show that at the heart of early Maori thinking lay the
knowledge that everything they could see, hear, taste, smell, anticipate and conceive of
was part of a greater, unified whole. The ideas that all being was rooted in wairua and
that change by augmentation occurred through successive “whakapapa” stages, provided
the rationale for all relationships being perceived as kin-based and familial. The ongoing
product of the whakapapa process was a complex, web-like, genealogical structure within
which kinship links were constantly being formed and extended. Within this complex
whole, everything had its own place and function.
(ii)
Whanaungatanga as a Concept Highlighting Relatedness
“Whanaungatanga” is the expression used to cover the various relationships recognised
by Maori of a kinship nature. While whakapapa as a principle, emphasises “order” and
“place”, whanaungatanga emphasises “relatedness”:119
This, also, must be clearly understood: Everything is a part of the Heavens and the Earth; there is
nothing of which it can be said it is of the Earth alone or of Heaven alone; all things have been placed,
each in its own position and after its own kind by them and their offspring [the gods], and, hence it is
[we say] all things emanate from them – the Stars, the Moon, the Sun – all of those are part of the
Earth and Heaven.
Today the importance of relatedness is highlighted by the widespread use by writers of
terms such as “holistic”, “inter-related”, “inter-dependent” and “inextricably linked”.
According to Barlow, a clear distinction between the concepts of whakapapa and
whanaungatanga is now hard to draw. This is because the concept of whakapapa has
119
Smith, supra note 59 at 172.
78
been extended beyond lineal descent to include a wider range of relationships of a lateral
nature as well, as between humans and other things. According to Barlow, if the term
“whakapapa” is altered so that the end of the word is extended to “paapaa” with a long
“a” vowel, the meaning changes to “to touch” and thus conveys continguousness. This,
he believes to be the true application of the term. In his view, “whakapaapaa” has always
been a broad enough term to encompass the wider kinship links that are more commonly
associated with the concept of whanaungatanga. 120
In any system of Maori custom law that seeks clarity in its application, as clear a
distinction as possible should be made between the principles of whakapapa and
whanaungatanga. Both Metge’s discussion of whakapapa as it relates to tikanga Maori
and succession and Barlow’s view of whakapapa as being an expansive concept that
incorporates whanaungatanga raise the necessity for distinguishing between the two. The
problem is one of boundary vagueness between two ordering principles. One natural
distinction that can be drawn between them is that whanaungatanga is widely used to
refer to the responsibilities inherent in kinship relationships, while whakapapa is used to
represent the genealogical connections that form the basis of those relationships.
(iii)
Whanaungatanga as a Principle of “Inclusion” that is devoid of Social Rank
There are two ways in which Whanaungatanga is central to this thesis. The first is by
way of contrast with Whakapapa as it applies to human ancestry. Whakapapa as it
applies to human ancestry, has, traditionally, distinguished between senior and junior
lines of descent and placed emphasis on the distinction as a means of allocating authority
amongst individuals within a group. As a principle, Whanaungatanga is more egalitarian
in nature. It highlights “belonging” and “inclusiveness” amongst members of a kin
group, irrespective of authority or ranking. In applying whanaungatanga as a principle of
Maori custom law, group membership is able to be broadened to a wider whakapapa base
of relatives.
120
Interview with Cleve Barlow at Kaikohe, 4 February 2000.
79
(iv)
Whanaungatanga as a Principle highlighting Moral Responsibilities
The second way that whanaungatanga is now commonly used is as a principle which
highlights the morality of the whakapapa process – what is tika (correct) and what is he
(wrong), in terms of interactions between the various things linked in any relationship. In
order to achieve this, whanaungatanga has its own set of attendant values and concepts
that give it coherence. These concepts reflect the importance of family relationships and
highlight reciprocity.
a.
Family Relationships
The obligations inherent in kinship relationships can be broadly divided into the way
Maori perceived the place of humans within the universe, human relationships with each
other, and human relationships with the particular resources Maori considered necessary
for their survival.
i.
Papatuanuku and Aroha
The ethics for all family relationships are set out in the creation stories. They depict a
strong emotive energy emerging from within the Wairua and spreading out to all things.
The ideas and ethics of protecting and nurturing appear in the narrations of the strong
emotional bond between Rangi the skyfather and Papatuanuku the earthmother, followed
by their eternal sorrow at being parted. The children of Rangi and Papa are generally
portrayed as competitive, jealous, territorial, unforgiving and passionate males.
Overarching their actions is the ongoing maternal affection or “aroha” of Papatuanuku
toward her many offspring. The gentle authority with which she infuses her power into
the physical world provides respite, protection and healing for all her children, human
and others. In many respects she is the ultimate mother and parental role-model. Rangi,
taking his cue from Io perhaps, who according to Mahupuku “sits in splendid isolation
above the topknot of Rangi”, does not seem to have been invested with the same degree
of concern for the wellbeing of his offspring. The ability to exercise aroha towards others
80
and to atawhai (care for) one’s relations, was a highly valued personal characteristic of
Maori leadership for males and females. Both sexes in Maori society seem to attribute
the caring attributes of the various roles within Maori society to Papatuanuku, the female
role-model, and strength and ability in various endeavours to her male children.
ii.
Group Identity – Whanau, Hapu and Iwi
Within traditional Maori society, political, social and economic rights and obligations
attached to whanau, hapu and iwi. All three names reflect the collective ethos of precontact Maori society. “Iwi” is often said to be derived from the term “koiwi” which
means “bones”. According to Barlow it is also the term used to refer to the human
embryo at the beginning of its existence.121 “Hapu” is the name given to the state of being
pregnant. “Whanau” relates to birthing and the processes that surround it. “Tangata” are
individuals, collectively named. The metaphor is one of a single body that is linked by
bones, and which renews itself through the birthing process.
The identification of an eponymous ancestor created a point of unity for groups to unite
along multiple lines of descent. Kawharu explains the relationship between whakapapa
and whanaungatanga and how the two principles apply to his people at Orakei:122
By kinship, we refer to the acceptance of ties between those descended from a common ancestor,
whether or not they live together in Orakei. It is the simple recognition of consanguineal kinship
unqualified by residence. Its main ingredient is belief in an all-inclusive solidarity among kin, and
it has had the effect of over-coming the conceptual – and actual – divisions created by descent, and
thus to tying not only the constituent groups within Orakei to each other and, in post contact times,
to individual households beyond Orakei, but also Orakei itself to a certain number of other hapu
communities. Kinship as used here thus refers to categories of people, not to local groups;
although all members of the Orakei hapu are also members of one or more such categories.
121
122
Interview with Cleve Barlow at Kaikohe,15 April 2002.
Kawharu, supra note 116 at 22.
81
iii.
Relationship to Natural Resources
Within pre-contact Maori society, group identity was greater than the sum total of its
living individuals and their actions. Whakapapa and whanaungatanga extended the
group’s identity beyond direct biological associations to include ancestors (human and
non-human) and their actions, future generations, and the group’s territory. The “mana”
and “tapu” attaching to natural resources meant that they could not simply be treated as
objects for humans to despoil and waste at will. The creation stories, particularly the
belief that Papatuanuku, as earth, was the physical manifestation of the mother of all
other deities, invested the land with enormous inherent value and authority.
According to Patterson, the idea that a person carries, as part of their own personhood,
the culmination of an extensive ancestry filled with spiritual and land associations is not
easily equated with Pakeha ideas of individuality, family and community:123
To the Pakeha, a community obtains its nature from the nature of its constituent members, present and
past, and their relations. Society is seen as a result of the bringing together of a number of essentially
individual persons. To the Maori the opposite tends to be the case. Kinship to the Maori ‘is more than
what to us [Pakeha] is community and solidarity. The common will which conditions the solidarity is
rooted in something deeper, in an inner solidarity of the souls. … To the Maori, then, persons obtain
their nature largely from their communal environment, their kin group, their whakapapa (genealogy).
They are not essentially individual. Without kin – present and past – they are literally nothing.
b.
Utu – Reciprocity
As a concept, principle and practice of Maori custom law, “utu” was highly developed in
Maori society. As a society based around recognising family links and associations, the
consequences of human interactions were rarely neutral. Positive actions bestowed on
others gave rise to an obligation to reciprocate. The same applied to negative actions and
affronts felt by others. An affront to an individual was an affront to the group as a whole.
123
Patterson, supra note 34 at 153.
82
Grudges could be carried over to successive generations until balance had been restored
into the relationship between individuals and/or groups. The concept of “utu” is
frequently referred to in the Papatupu records and will be discussed in more detail in
Section C of this study, as a process of retribution for wrongs committed against one’s
kin.
83
(d)
(i)
MAURI
Introduction
The concept of “Mauri” is not specifically mentioned in the Papatupu Hearings, whose
purpose was to transfer customary Maori title into Native Land Act title. Within this
context, emphasis was on the quantification of entitlements under the new system of
“ownership” amongst existing groups on the land. Why “Mauri” as a concept was
excluded from the open discussions designed to allocate rights to areas of land is a matter
for speculation. References to “Mauri” in early Pakeha writings show that it was a
central part of Maori thinking at the time. It may be that the whole process of
establishing land titles was seen by Maori as being of an administrative nature only, with
the substance of that tenure retaining its strength under tikanga Maori. As “Mauri”, like
“Wairua”, sits at the esoteric, highest-values end of Maori principled thinking it may not
have been a suitable subject for discussions that were primarily focused on administrative
matters.
Notwithstanding the above, an understanding of Mauri as a value/principle underpinning
Maori custom law is central to understanding this study. In a mindset that perceived
ultimate reality as wairua, whakapapa as the process for organising relationships,
whanaungatanga as investing them with moral and ethical values, mana as the principle
of authority and power, and tapu as the concept of sanctity and restriction – what was the
ultimate purpose of these principles? The answer is –– to safeguard the “mauri”.
(ii)
What is Mauri?
In a Maori framework of thinking, “mauri” stands for the source of vital energy that
everything perceivable by the senses, the mind and the heart, possessed. In writing for
the resource management law reform in 1988, Marsden drew together the universal
nature and fundamental importance of Mauri to all created things:124
124
Marsden, supra note 57 at 20.
84
Imminent within all creation is ‘mauri’ – the life-force which generates, regenerates and upholds
creation. It is the bonding element that knits all the diverse elements within the Universal
‘Procession’ giving creation its unity in diversity. It is the bonding element that holds the fabric of
the universe together.
20th century Pakeha writers also recognised Mauri as an important, although difficult to
grasp, abstract quality. Best defined it as an ‘active life principle’ or ‘physical life
principle’125 of general application:126
Everything animate and inanimate possesses this life principle; without it nought could flourish.
Nor is this potential quality confined to material objects; not only does the unstable ocean and
fleecy mist wraith possess a mauri, but also wind, winter, summer, night and day, etc., are
endowed with this life principle.
A simpler explanation of Mauri is given by Tai Tokerau researcher Manuka Henare, who
says that Mauri is not the principle of life, but “life” itself.127 In his doctoral thesis
Henare only makes cursory reference to Mauri as part of a broader discussion on Vitalism
in which Ngapuhi elder, Sir James Henare, describes the meaning of the term “whenua”
(land) as:128
... the term used for both the land and the placenta of afterbirth; therefore, the land for Maori
people has the same deep significance as the placenta, which surrounds the embryo. Giving it
warmth and security, a mauri, a life force that relates to and interacts with Mother Earth's forces.
From this explanation “Mauri” can be viewed as an interactive force capable of binding
objects and otherwise separable things such as land and people, or placenta and human,
together in a co-dependant relationship.
125
Best, supra note 30 at 29-30.
E Best, The Maori, Harry H Tombs Ltd, Wellington, 1924, 306.
127
Interview with Manuka Henare at Auckland, 19 October 2002. Although it is easier to think of mauri simply as
“life” this does not overcome the need for a meta-language by which to discuss the concept and its application.
128
Henare, supra note 78 at 35.
126
85
(iii)
What is the Job/Purpose of Mauri?
Barlow develops the description recorded by Best by adding that Mauri, infused at the
beginning of life, enabled perception, identity, personality and character to form and
develop and that:129
… Everything has a mauri, including people, fish, animals, birds, forests, land, seas, and rivers;
the mauri is that power which permits these living things to exist within their own realm and
sphere.
The concept of mauri functions as an identifiable repository for the vital energy necessary
to keep things alive and/or to maintain them in an identifiable state of permanence. In
this sense ‘vitality’ refers to two distinct things: first, the production of ‘animus’ or life
force in things that breathe such as humans and other animals: second, it also refers to a
cohesive energy that enables inanimate objects to take a specific form and maintain a
unique identity. Even purely abstract things like ideas, plans and group endeavours are
imbued with mauri.
In trying to bridge the cultural barrier between himself and Beattie, Tikao elaborated
what he thought a European might liken Mauri to:130
You who are Pakeha might call it spiritual knowledge, the intellectual faculty or the accumulated
mental experience which comes from observation and instruction. It was an invisible essence in the
composition of the spirit or soul, and if it departed or was taken away, the person died.
This description of Mauri from an early Maori tohunga reinforces the idea that "Mauri" is
a force that binds together important aspects of existence which would otherwise revert to
their separate components.
129
130
Barlow, supra note 108 at 83.
Beattie, supra note 59 at 74.
86
(iv)
Why does Mauri need Protection?
As a jural concept, Mauri was part of the spiritual content of a person, without which that
person could not live. It was part of the spiritual content of all other things as well,
without which they would lose their vitality and coherence. Take away the mauri and a
mountain would crumble, forests would wither, humans would die. According to Muru,
the term “Mauri” was very tapu (sacred), relating as it did to the deepest aspect of
existence. As such it was spoken about in wananga but rarely discussed in common
parlance.131 The use of the term "Tihei Mauri Ora" in whaikorero, as part of the formal
speechmaking on the marae indicates a traditional use of the term in a highly tapu
(restricted) situation when groups of strangers come together for the first time.
A modern story demonstrating the application of Maori thinking about Mauri is told by
Marsden, who after returning from the second world war, explained to his kaumatua
(elders) how the splitting of the atom had produced the atomic bomb that had been
dropped on Hiroshima and Nagasaki, in Japan. One of the kaumatua, Toki Pangari,
interjected to ask whether the Pakeha tohunga had learnt how to tear the fabric of the
universe. On being told that this was so he then asked “E taea e ratou te tuitui?” (Do
they know how to sew it together again?) On being given a negative answer, he
responded. “Na, koia tena te mate o te whangai i nga matauranga tapu ki nga tutua, ka
tukinotia i a ratou” (That is the trouble with sharing tapu knowledge with the low born,
they will abuse it).132
As the source of vital energy of an object, mauri could be manipulated to increase the
generating power, fertility, performance or productivity of different things. It could also
be interfered with in a negative manner in order to reduce the generation of vital energy
below that necessary to sustain things in a permanent, or living, state. When applied to
whenua (land) and other natural resources, mauri is the life force that is reflected in the
physical health and vitality of the resource. If the mauri of a resource is strong it will be
131
132
Interview with Herewini Muru at Auckland, 29 September 2003.
Marsden, supra note 57, Introduction at xiii.
87
reflected by abundance, if the mauri is weak it will similarly be reflected by the
weakening of a resource and could possibly result in its death.
In conversation with historian Herries Beattie, Teone Tikao, Ngaitahu tohunga, described
the consequences of manipulating Mauri:133
… The Mauri might be called the knowledge that was held within the Wairua (soul) of man or the
animating principle of anything – it is very hard to describe in English. … Besides invoking the
Mauri of anything, the skilled tohunga could take it away from anything. He could take it from a
man – the man would die; he could take it from the bush – the bush would die; he could take it
from a mountain – the mountain would fall.
Solid objects such as stones and trees were often used as symbolic representations or
repositories to protect and foster the life-principle and general welfare of man, birds, fish,
land forests, and other things.134 These objects were hidden to protect them from
violation by those who might wish to negatively affect the mauri of whatever the object
symbolised. Throughout Aotearoa/New Zealand, writers noted that success, prosperity
and good fortune persisted only while the Mauri remained inviolate.135 As a consequence,
human behaviour was adapted to avoid violating the mauri of the resources:136
… The Maori believed that nothing in this earth existed without its mauri and that if this were
violated in any way, its physical foundation was open to peril or exposed to great risk. If the mauri
of a forest were violated, the trees and plants would not be able to produce in abundance, but fruits
would be scarce, and there would be very few birds. …
At a practical level, Maori understanding of mauri can be simply explained as a need to
protect resources in order to maximise group survival. At a conceptual level, however, it
is not such a simple matter. Whakapapa and whanaungatanga links meant that damage to
the mauri of one object could cause a chain reaction which would, in time, link itself back
to humanity with potentially catastrophic results. Hence the dismay of Toki Pangari on
133
Beattie, supra note 59 at 68.
Best, supra note 30 at 34-35.
135
TG Hammond, The Story of Aotea, Lyttleton Times Co Ltd, Christchurch, 1924, 202.
136
Makareti, The Old Time Maori, V Gollancz, London, 1938, 181.
134
88
hearing that the universal fabric had been torn by an atomic explosion that had unleashed
so much energy without concern for possible adverse consequences. As a consequence
of this type of thinking, actions affecting mauri were closely attended by rules associated
to the concept of “tapu”, which constrained human interference with natural resources.
At a purely pragmatic level, the concept of maximising the protection of the mauri of
objects associated with a person or group, ensured a better livelihood. Where
interference did occur and negative consequences resulted, measures were taken to
revitalise the object and restore it to its original state.
Mauri has emerged as an important Maori value in judicial decision-making in recent
years because legislation such as the Town and Country Planning Act as amended in
1977, which has since been replaced by the Resource Management Act 1991 has
permitted the inclusion of tikanga values in resource management activities that are
monitored by territorial and regional councils. The establishment of the Waitangi
Tribunal in 1975 as a forum for hearing Maori grievances against the Crown for breaches
of the principles of the Treaty of Waitangi/Te Tiriti o Waitangi has also reinforced the
importance of mauri.137
(v)
Conclusion
The concept of Mauri lies at the heart of the Maori metaphysical world and Maori custom
law. It is the fundamental building block of physical existence without which nothing
else can exist or take an identifiable form. Its presence allows things to move towards
realising their full potential. As such, mauri needed to be protected against adverse and
unwarranted interference. The ideas associated with the concepts of mana and tapu, and
the principles and rules to which those concepts give rise, provided that protection. In
Section D, mauri is integrated into the discussion of Kaitiakitanga (guardianship) and
Tapu, rather than dealt with as a discrete topic.
137
see infra page 329 where the relevant sections of the Resource Management Act are laid out.
The Waitangi Tribunal is covered at supra note 100 and infra pages 328-330.
89
(e)
(i)
MANA
Introduction
The first important substantive concept of Maori custom law is Mana. Whereas Mauri as
the life principle of an object is the primary element of being that requires protection in
order for life and form to exist, Mana refers to the various sources of authority and power
recognised by Maori society that enabled that protection to be forthcoming.
(ii)
The Double Aspect of Mana – “Power” and “Authority”
“Power” and “authority” are two associated ideas that convey the meaning attributed to
“Mana” by Maori. Marsden defines this double aspect of mana as:138
‘lawful permission delegated by the gods to their human agents and accompanied by the
endowment of spiritual power to act on their behalf and in accordance with their revealed will’.
This delegation of authority is shown in dynamic signs or works of power.
“Authority” and “power” must be clearly distinguished as to exercise power outside its
delegated limits was viewed as an abuse of “authority”, and would result either in its
withdrawal or in harm to the agent and others. The example of using an atomic explosion
to end the Second World War highlights the difference between the two. For Maori, such
a gross demonstration of power against the universe would have been difficult to justify
as a quick fix measure for settling a dispute between groups. The cancer caused by
radiation as a result could be interpreted as “utu”, divine retribution wrought by angry
atua in response to human interference in their realm, at the site of the event.
138
Marsden, supra note 18 at145.
90
(iii)
Sources of Mana Recognised by Maori Society
Mana is most commonly categorised according to its source of origin. These are set out
by Barlow according to source and relative strength as Mana Wairua, Mana Atua, Mana
Tupuna, Mana Whenua and Mana Tangata.139
a.
Mana Wairua. The attribution of mana to wairua gave recognition to the
original source of all things being spiritual. It acknowledges the universal source from
which everything derives, as containing the raw material for all existence, and invests it
with supreme authority and power. According to Barlow, in Ngapuhi traditions, wairua
represents absolute power and authority and the ultimate divine will.140
Mana wairua reinforces the importance of spirituality in life and recognises the power of
spiritual processes. Although wairua represents absolute power and authority and the
ultimate divine will, its main contact with the world of humans appears to be through the
creation of the substantive concepts that are part of the creation whakapapa process, one
of which is “mana”.
b.
Mana Atua gave recognition to the various atua of the Maori as being the source
of authority vested in humans and other parts of the created world. The Maori worldview
contains numerous atua, who together are responsible for a variety of physical and
spiritual creative processes. Best formed a four stage, divine hierarchy of atua with Io at
the top, having little to do with humans, followed by a series of departmental gods which
were personifications of natural phenomenon –– earth and sky, war and peace, then tribal
gods, and, finally, family gods or familiar spirits.141
All humans possessed inherent mana through their whakapapa links to the atua. Natural
talent was also attributed to the atua bestowing their mana on specific individuals at
139
Barlow, supra note 108 at 61-62. “Mana Wairua” is a concept that emerged during discussions about tikanga
Maori held with Barlow at his home in Kaikohe, in 1999.
140
In this sense “divine” refers to the acceptance of a non-physical realm that is not of human origin.
141
E Best, Social Usages of the Maori, Maoriland Worker Printing and Publishing, Wellington, 1918, 9.
91
conception. In addition, mana could be bestowed on individuals for a particular purpose,
such as protection in war and to enhance gardening activities, through karakia, which
invoked their attention and enabled individuals to enter into direct covenantal
relationships with them.142 At a practical level, the enactment of ritual signified to others
within the group than an individual was being singled out for a particular task or purpose
associated with the group’s overall welfare.
c.
Mana Tupuna refers to mana that is derived from ancestry. The dual ideas
that mana was derived from a spiritual source and that various atua held authority over
the different parts of existence, continued into human ancestry. In the temporal realm,
tupuna (ancestry) was the main basis for claiming authority amongst and over other
humans within a group. According to Durie:143
Mana tupuna expressed the basic ideology that all things came from ancestors, land rights, status,
authority, kinship, knowledge, ability etc. Mana was usually presented as ascribed but ascription
was usually retrospective to validate achievement (‘he is brave, caring etc for he is the descendant
of so and so’) so that in practice, mana was both ascribed and achieved.
Genealogical connections were the main determinants of all entitlements to whenua
(land) claimed by an individual or group. Once territory was settled, ancestral actions
provided a guideline for the interaction of successive generations with others who wanted
to live within a group’s territory, temporarily or permanently. The principles of
Whakapapa, Whanaungatanga and Mana all came into play in governing interactions on
the land.
d.
Mana Whenua is a term that incorporates the collective ethos of Mana Atua,
Mana Tupuna and Mana Tangata into a concept that combines whakapapa and
territoriality. There is debate within the Maori legal community as to whether “mana
whenua” derives from the pre-contact period or is a modern innovation.144 145 Some
142
Shirres, supra note 76.
Durie, supra note 39 at 8.
144
Waitangi Tribunal, supra note 42 at 18.
143
92
support for the claim that it is a modern collation of two traditional Maori concepts can
be found in its lack of usage as a single land concept in the Papatupu Hearings’ records,
where, had it been in common use at the time, it should have appeared. Instead the term
"mana rangatira" is found. However, the term is now in common usage and its ongoing
use is guaranteed by inclusion in Section 2 of the Resource Management Act 1991, which
defines “mana whenua” as “customary authority exercised by an iwi or hapu in an
identified area”. This change in terminology is elaborated further in Sections C and D.
Modern use of “mana whenua” is an acknowledgement of two things. First, it
acknowledges the independent spiritual power and authority invested in te whenua (the
land) by association with the primordial parent, Papatuanuku. This association highlights
the importance of te ira wahine, or the female ethic, in recognising the mana, mauri and
tapu of the land, and invests it with authority. In its co-existence with humans, the
relationship between land and people is unequal in that humans are always dependant on
it for their physical and spiritual fulfilment. The second aspect of mana whenua relates to
the political power associated with group territoriality. This latter definition accords with
the definition in the Resource Management Act and is closely affiliated to the concept of
mana tangata.
The combined product of the above two aspects of mana whenua meant that not only did
humans hold the mana of te whenua and its resources, but, conversely, the whenua
ensured that the mana of the people was upheld by sustaining them with its resources.
The central ideas of nurturing and dependence carried over into human relationships in
that the human placenta, which nourishes the child in the womb, is also called “whenua”.
This dual association emphasises the perception of land as Papatuanuku, being the
principal source of temporal power and authority for humans.
145
Re a claim to the Waitangi Tribunal by Henare Rakihia Tai and the Ngai Tahu Trust Board, 12/11/90, Maori
Appellate Court, Te Waipounamu district, 4 South Island Appellate Court Minute book, folio 673, 1. This case is
included as Appendix 4, Ngai Tahu Report –WAI 27, Wellington, 1991, 1122.
93
e.
Mana Tangata refers to human authority as exercised in relationships with other
humans. It is closely associated with the second meaning of mana whenua and is
circumscribed by mana wairua, mana atua, mana tupuna and mana whenua.
Mana Tangata is the least enduring of the several sources of mana recognised by Maori,
being totally dependent on the others for its existence. Barlow describes it as “the power
acquired by an individual according to his or her ability and effort to develop skills and to
gain knowledge in particular areas”.146 Territorial authority was generally associated with
groups. However, within the group, individuals had defined roles and there was
flexibility to move within ranks, using the institution of mana.
According to Te Rangi Hiroa, the role which epitomised the ideal to which Maori aspired
was that of the “rangatira”, a person who possessed an amalgam of traits prized by the
group, including the ability to lead, care for, and unite, others.147
The mana of a chief carries the meaning of power and prestige. The first-born son inherited the
power to rule and direct his tribe, but this mana lay dormant within him, so to speak, until it was
given active expression on his father’s death … . He also inherited the prestige of his position, and
the greater the prestige acquired by the family and tribe, the greater the mana that was inherited.
Besides the inherited mana, a new ariki could acquire additional mana by the wise administration
of his tribe at home and by the successful conduct of military campaigns abroad. … The mana of
a chief was integrated with the strength of the tribe. It was not a mysterious, indefinable quality
flowing from supernatural sources; it was basically the result of successive and successful human
achievements.
Later on Te Rangi Hiroa adds that while achievement was important to leadership,
rangatira possessed unique qualities and gained access to restricted knowledge of a highly
tapu (restricted) nature that was not available to other members of the group:148
146
Barlow, supra note 108 at 62.
Hiroa, supra note 74 at 346.
148
Ibid at 475.
147
94
First-born chiefs inherited certain religious powers (mana atua) by reason of primogeniture. In
youth, they were admitted to the schools of learning together with theological students and thus
acquired a good deal of religious theory and practice …
.
This acceptance by Te Rangi Hiroa that primogeniture invested one with mana atua is
odd, given his otherwise practical analysis of mana. Whether the rangatira acquired mana
through personal achievement acknowledged by the group, however, or through ancestry,
he or she was always dependent on the group’s support to maintain that mana. The
result of this, Best records, is a society in which Maori balanced “demonology” with “a
peculiar combination of democrat and aristocrat”:149
He ever held his high-born chieftains in esteem, so long as they conducted themselves in an able,
unselfish, and conscientious manner. Should they fail, however, to uphold the standard demanded
by the people, then their influence waned, and others were elevated to such positions. At the same
time, the Maori, in many ways, was a democrat. Every freeman, and woman, had a right to public
speech in the arrangement of any matters connected with the family group, the clan, or the tribe.
Chiefs would lay proposals before the tribe or clan, and the latter would accept or reject them.
The chief would not, indeed, could not, command the people to act on his own initiative. Secret
diplomacy was an impossible thing; all political and social matters must be discussed and settled
by the people. …
Shane Jones of Ngapuhi nui-tonu, as Manager of Maruwhenua, the Maori Policy Unit of
the Ministry for the Environment, extended the discussion on rangatira into
“rangatiratanga” during the government consultation with tangata whenua, (people who
whakapapa to the land), before the enactment of the Resource Management Act 1991:150
… Historically authority was exercised by rangatira. They executed a range of functions. The
procedures and goals however which they worked towards derived their legitimacy through
acceptance by the people. They needed to mobilize support and could not function through simple
fiat or distant commands. Thus the importance of oratory and a knowledge of tatai, kinship, as a
basis for alliances. The authority of the rangatira weakened when the manner in which they
exercised the authority became disconnected from the interests of people.
149
150
Best, supra note 140 at 9.
S Jones, “Consultation with Tangata Whenua” (unpublished paper on file with author), 1992, 4-5.
95
Jones discusses how mana can be lost if it is abused:151
The expression, poka noa, refers to the misuse of mana. Inherent in the Maori conception of
power is the notion that the agent who uses it in an unprincipled manner will lose it. Authority
which is exercised beyond the value framework is not rangatiratanga. It might be described as
“naked power” or he takatakahi. This expression means to violate. Given that mana is endowed
from “above” and endorsed from “below” the actions of the powerholder, te tu o te rangatira, are
expected to conform with kaupapa. Rangatira hold and use power as representatives of and
trustees for a defined group. Mana tupuna, ancestral descent identifies the group and endows the
rangatira with power to exercise authority in relation to that group.
The mana attributed to rangatira by others meant that they were central to group decisionmaking about matters affecting the group. In theory, the decisions they made were
always subject to ratification by the other members of the group. In practice, a strong
leader could become an autocrat.
(iv)
Conclusion
Mana takes us into a head-on collision with other worldviews which, in their modern
application, do not include notions of a series of deities who preside over the world
around us, investing power here and there, as they please. Although Christianity has a
strong spiritual belief, as a monotheistic western religion, the multitude of deities and
spiritual beings that the Maori worldview recognises can be problematic. To this
mindset, Io, as a single supreme Maori god, is far easier to accept than a pantheon of gods
with a multitude of interests and personalities, who play havoc with the world. The
current trend of legal positivism within Aotearoa/New Zealand on the other hand, is to
restrict ideals to “mana tangata” values and go no further than humanity and human
institutions in seeking ultimate sources of power and authority.
151
Ibid at 6.
96
(f)
TAPU
(i)
Introduction
Another important substantive concept of pre-contact Maori society and principle of
Maori custom law, was Tapu. Pre-colonial European writers noted the widespread
recognition and use of tapu amongst Maori and throughout the Pacific. Father Servant, a
Marist Missionary who arrived in Aotearoa in 1838 and spent 4 years in the Hokianga
devoting himself entirely to the Maori community, wrote:152
Nothing is more common amongst the natives then the use of the tapou: the tapou affects people,
animals, fields, houses, woods, properties, work, political and religious matters. When one asks
the natives about the nature and origin of tapous they are embarrassed. But nevertheless, among
their tapous they recognise some extraordinary ones which they say came from the gods; these
tapous are regarded as powerful ones. There is another kind which the great chiefs impose on
their inferiors. Both kinds are observed with the most scrupulous care. …
Every aspect of Maori life was accompanied by some form of tapu associated with
different Atua, and each had its own set of attendant rules.
(ii)
What is Tapu?
In the metaphysical world of the Maori, tapu can best be described as a quality that
emanates from the wairua source, investing objects with value. In its practical
application, tapu was the principal means by which the mauri of an object could be
protected from harmful interference by overlaying the object with tapu. The concept of
“tapu” is closely related to that of “mana” in that the authority attributed to wairua and
atua provided the impetus for investing objects with tapu. Additionally, mana tangata
enabled those rangatira and tohunga with the requisite mana, to impose a state or
condition of tapu over a person or object.
152
Servant, supra note 59 at 34.
97
The concept of tapu is circumscribed by ideas of privacy and exclusiveness. According
to Marsden it is close to the Jewish idea of “sacred”. However, although it has religious
and legal connotations, it is devoid of an accompanying New Testament flavour of
“moral righteousness”.153
There are two different ways that ‘tapu’ was used by Maori. The first was as a reference
to the divine quality attaching to all things by virtue of their whakapapa relationship to
the atua. The second was as a term used to describe a condition or state of restrictedness
imposed on a person, place or object by someone else. While both are referred to in the
Servant passage quoted above, Taylor refers to tapu in terms only of the latter, as being
“a religious observance established for political purposes”.154
a.
Inherent Tapu
In Maori thinking everything has inherent Tapu. “The land has tapu as well as the
oceans, rivers and forests, and all living things that are upon the earth“. 155 Shirres refers
to this naturally occurring tapu that is part of the make-up of all things as “primary
tapu”.156 Attached to this concept of naturally occurring “primary” or “inherent” tapu are
ideas associated with personal identity and individuality.
In a society where group welfare often overrode individual concerns, the idea of inherent
tapu served an important purpose. It enabled value to be given to privacy of the person.
Strict rules were employed to protect personal integrity. As the head was considered the
most tapu part of a person there were rules prohibiting the passing of food over the head,
especially if the person was of senior lineage. There were also rigidly applied rules
protecting the bodily integrity of warriors preparing for war, women during birthing, and
burial.157
153
Marsden, supra note 18 at 119.
Taylor, supra note 74 at 55.
155
Barlow, supra note 108 at 128.
156
Shirres, supra note 72 at 34.
157
Makareti, supra note 136 at 146.
154
98
Frederick Maning, who lived amongst the Hokianga Maori during the pre-colonial
period, states that the original object of tapu was the preservation of personal property.
In Old New Zealand,158 he describes the strictness with which rules of tapu were
observed. Punitive measures imposed for breach of the rules of personal tapu varied.
Death was frequently the penalty, particularly if the person whose tapu had been violated
was of high rank within the group. Maning relates how an involuntary offender, “a stout,
hungry fellow” who unknowingly ate the leftover food of a rangatira, left behind when he
went into battle, was seized by convulsions when he found out and died within six
hours.159 As a regulator of human behaviour the institution of tapu was a powerful
psychological deterrent to breaching the rules that existed within the group.
b.
Imposed State or Condition of Tapu
The second way that the concept of tapu was employed was to describe the state imposed
when a person of mana performed the correct ritual and decreed that a person, place or
thing was “under tapu”. Once the necessary formalities of dedication had been enacted,
the place, person or thing became “off-limits”, being subject to whatever restrictions had
been imposed, until the restrictive state had been lifted. Both the ritual performed and the
resultant state, were referred to as “tapu”.160
A person, place or thing is dedicated to a deity and by that act it is set aside or reserved for the sole
use of the deity. The person or object is thus removed from the sphere of the profane and put into
the sphere of the sacred. It is untouchable, no longer to be put to common use. It is this
untouchable quality that is the main element in the concept of tapu. In other words, the object is
sacred and any profane use is sacrilege, breaking the law of tapu.
It was common to say that “a tapu had been laid” when referring to the actions and words
of the tohunga or rangatira responsible for conducting the ritual of laying the tapu. It was
also common to refer to the new relationship that had been established simply as the
158
FE Maning, Old New Zealand, R Bentley, London, 1887, 119-150 at 122.
Ibid at 124.
160
Marsden, supra note 18 at146.
159
99
person, place or thing “being tapu” or that such-and-such “is tapu” without further
elaboration.
In the enactment of ritual, a clear distinction between the concepts of mana and tapu is
not always clearly made by those who use the terms. A distinction can be made,
however, in that “mana” describes the authority and power necessary to conduct the ritual
and effect change, while the resultant, altered state is better described as “tapu”.
(iii)
Rahui
The regulation of natural resource property relationships was achieved by intensifying or
diminishing the inherent state of tapu of a resource through ritual dedication to the
relevant atua. “Rahui” were restrictions set in place by rangatira and tohunga to make
specific areas and resources out of bounds to certain people, or to set them aside for a
particular purpose or use. The result was an imposed state of restricted access
acknowledged and upheld by members of the community. The resource was thereafter
referred to as “ being tapu” and rules were attached to safeguard the new state from
violation.
The institution of rahui included a series of rules relating to digging, planting, weeding
and harvesting of crops, particularly kumara, to tree felling, hunting, fishing, and to
gathering other sorts of food. The general sanction for breaching these rules was death,
sometimes self-inflicted through fear. In terms of natural resource property relationships,
tapu or rahui, with its accompanying physical and spiritual sanctions, was an extremely
effective means of controlling social behaviour. Makareti Papakura of Arawa records
that while a crop of kumara was growing only those who were authorised were allowed to
step on to paths leading to the garden once the surrounding area had been declared tapu.
Anyone who violated the ‘no access’ rule by going to view the garden, or who asked how
the crop was progressing, would be put to death.161
161
Makareti, supra note 136 at 193.
100
Shirres draws a distinction between the “primary tapu” inherent in all things, and its
“extensions” as new states brought about through the enactment of protective rituals
restricting the activities of others.162 Aside from this, he does not discuss how “tapu” can
be manipulated to serve a variety of practical ends and political needs. The omission to
do this means that the distinction between the origin of tapu and its functional use as a
primary regulator of human behaviour within Maori society is not as fulsome as it might
have been. Distinguishing the extension of personal tapu to form personal property
relationships, from the dedication of people and resources by rangatira and tohunga,
clarifies the application of tapu as a jural regulator of human activity.
(iv)
Tapu Nature of Knowledge
The degree of tapu recognised within Maori society as attaching to an activity or place
varied according to the value and importance of that activity or place to the group.
Profound knowledge was imparted to selected pupils chosen from the group in restricted
teaching fora. According to Teone Tikao of Ngaitahu, the imparting and acquisition of
knowledge in the Wharekura and Whare Maire, where general instruction on diverse
subjects including carving, agriculture, astronomy and remedies for diseases took place,
was “particularly tapu work”. The rules associated with acquiring this knowledge were
punitive and strictly adhered to. Classes were often conducted from dusk to daybreak
without interruption. Students were not permitted to leave the building during that time
for any reason. The penalty for violation of this rule was death.163 However, in the
Whare-pu-rakau, where the tactics and strategy of war was taught, “It was Tapu, too, but
not of course to the peculiarly deep extent the other two schools were”. Astronomy, on
the other hand “could be taught outside as it was not so tapu as the rest”.164
In this instance the rules associated with tapu can be seen as upholding the secrecy and
privacy of knowledge considered important to the group’s survival, as well as ensuring
that those who held it were worthy recipients.
162
Shirres, supra note 72 at Chapter 3.
Beattie, supra note 59.
164
Ibid at 67-69.
163
101
The East Coast tohunga from Kahungunu believed that with the advent of white people
changes had occurred in the fixed learning of the whare wananga and that the tapu
associated with the teachings of the old tohunga had been diminished:165
The tapu has ended; the true teaching has been lost … Because the tapu was all important – the
first of all things; without it none of the powers of the gods were available, and without the aid of
the gods all things are without authority and ineffectual;
Despite these words of despair from the tohunga, tapu still remains firmly entrenched in
Maori thinking about the natural makeup of the world today.
According to Marsden,166 in Tai Tokerau, the Whare Wananga (the House of Higher and
Esoteric Learning) was convened in winter. Students were made aware of the serious and
tapu nature of what they were being taught and learning could take years before students
were tested by tohunga. He does not tell us what the content of the whare wananga
learning was, except that it included the three baskets of knowledge, Te Kete Tuauri, Te
Kete Aronui and Te Kete Tuaatea, and that the highest heaven is called Te Toi-o-ngarangi, where Tanenuiarangi was cleansed by Rehua and obtained the three kete and the
stones, Hukatai and Rehutai.
The restricted nature of the Whare Wananga makes it very possible that many of the
terms now in common use amongst Maori, including “mauri” and “Io”, were once only
spoken about by those who had been dedicated to learning the lore associated with the
Maori world view and the laws relating to imparting that lore to common folk.
(v)
Conclusion
There are three ways that the concept of tapu can be viewed. First, “Tapu” refers to a
quality or state of existence that Maori hold to be naturally occurring in all things by
165
166
Smith, supra note 28 at 104.
Marsden, supra note 57 at 77-79.
102
virtue of their whakapapa relationship to the Atua. This is commonly referred to as
“inherent tapu”, “primary tapu”, “natural tapu”, or “ordinary tapu”. It entails ideas of
personal integrity and privacy. This natural attribute extended to personal belongings and
reserved items belonging to individuals for their own personal use, the result being
something akin to the concept of personal property in western thinking. Second, “Tapu”
also referred to the ritual of dedication carried out by tohunga and rangatira to reserve the
use of specific things to certain people, or to dedicate people for particular purposes. In
this instance, tapu is the product of mana being actively asserted by someone with the
requisite authority and ability to do so. The imposition of rahui over resources falls
within the former category and symbolised the imposition of an exclusive “property”
relationship exclusive relationship. The dedication of warriors for warfare is an example
of the latter. Third, “tapu” was used to refer to the new state or condition produced as a
consequence of the ritualistic dedication of an object or person to the atua by tohunga and
rangatira. It served as public notice to all members of the group of the new state of
affairs. Finally, particular importance attached to the knowledge and ability required to
impose states of tapu, knowledge of which was also considered tapu, and was restricted
to those fortunate enough to be chosen as initiates of the whare wananga.
103
4.
CONCLUSION TO SECTION B
SUMMARISING A CONCEPTUAL FRAMEWORK FOR MAORI CUSTOM
LAW
In the abstract thinking drawn from a Maori worldview, Wairua is the original source of
all things, and the ultimate answer to the ultimate questions – who am I? – how did I get
here? – why am I here? – where did I come from? “Wairua” is now commonly used in
Tai Tokerau as a generic term to refer to all the non-physical aspects of a Maori
worldview. These non-physical aspects can be alternatively categorised as meta-physical
components of a “supra” existence that Maori believed in, in much the same way as Plato
and his “real” forms. Or they can be viewed as purely intellectual constructs essential to
Maori thinking and reasoning about the physical world, and necessary for regulating their
relationships to it. In Maori thinking, a natural emphasis is placed on linking rather than
disassociating objects from each other. However, in order to establish a clear framework
of custom law suitable for a modern society, dismantling of the system in this way is
unavoidable.
From Wairua other important concepts are derived as substantive principles of Maori
custom law. The first substantive principle is “Mauri”, the concept representing “life”
and “identity”. Wairua perpetuated itself throughout creation via the medium of mauri.
As such, Mauri can be viewed as an enabling concept that acted as the “key to life” or
simply as “life”. Wairua also gave rise to the concept of Mana, which represented the
authority and power exercised by all things in celebration of their existence and an
imperative force essential to safeguard and maximise that existence. Wairua was also the
source of the protective power inherent in all things by virtue of their Tapu. In a custom
law framework, the best description of Tapu, is as a concept that protects mauri by
controlling activity.
As an organising principle, Whakapapa provides the intellectual framework for ordering
all the relationships that Maori recognise as being important to their worldview. It links
104
everything conceivable into a complete whole and created a series of familial hierarchies
within creation.
Whanaungatanga is also a structuring principle that, in practice, highlights relatedness
and kinship over process and hierarchy. Whanaungatanga provides the moral basis for
the relationships established by the whakapapa process. It has its own attendant concepts,
including “aroha”, the principle of feeling and caring for others, and “utu”, the principle
of reciprocity. At this level values are very much in existence and morality colours the
picture so that ‘tika’ (right) and ‘he’(wrong) tell us which actions are good and which are
bad, and why. Good actions are those that uphold kinship and family relationships, bad
actions are those that devalue or undermine kinship and family relationships.
In the past, important actors in terms of decision-making were rangatira and tohunga.
These two roles were attributed the requisite mana and tapu to act in a jural capacity with
regard to the rest of the group. The words, actions and person of a rangatira was highly
respected. The words of a tohunga could alter states of being. Together they were able to
manipulate the tikanga on the land for the benefit of the individuals of a group.
Ritual provided a formal process for regulating and altering relationships. It served a
two-fold purpose. It was viewed as ceremonial manipulation of the wairua component by
invoking the mana of the atua and altering the existing tapu state. In temporal terms it
served to signal the establishment of new relationships within the community and
provided public notification of changed circumstances that had to be observed.
The other concepts and principles that flesh out Maori resource relationships are
combinations of whakapapa, whanaungatanga, mana, tapu and mauri in action. In total,
they combined to form a systematic process that was jural in nature and which included
all the constituents necessary for a Maori system of custom law.
105
WAHANGA TUATORU – SECTION C
WHAKAPAPA, WHANAUNGATANGA, MANA I TAPU – MAORI CUSTOM
LAW IN THE 19TH CENTURY (AND EARLIER)
106
Location Map 2 (AREA OF STUDY)
1.
INTRODUCTION
In this Section, I will examine the application of the 4 main principles of Maori custom
law identified in Section B – Whakapapa, Whanaungatanga, Mana and Tapu – in the mid
Tai Tokerau region during the 19th Century (and earlier).
I have included (and earlier) in the title because the concepts/principles I am referring to
have their origin in a time far earlier than the written records that are the main source of
this study. Oral traditions handed down on the marae at Maori gatherings throughout Tai
Tokerau depict the activities of ancestors whose actions are explained and determined in
accordance with these concepts/principles. The handing on of this traditional oral
knowledge by generations of Maori elders has inculcated an appreciation of concepts
such as Wairua, Whakapapa, Whanaungatanga, Mana and Tapu, at a broad conceptual
level in successive generations of Maori. It is this understanding that enables Maori to
link past to present and future as part of an ongoing whakapapa process and to maintain
its continuity at a principle-based, values level. Although the people on the land have
changed, the traditional principles that governed their lives have remained remarkably
stable in most areas of Tai Tokerau. Today, although some of the practices associated
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with principles have changed in their practical implementation, they are still considered
to be fundamentals of Maori thinking about right actions on the land at a values level. It
is this appreciation of the whakapapa of oral tradition that leads Marsden to call for a
subjective approach to finding the truth by way of engaging the heart, spirit and
ancestors,167 and an absence of it that leads Young to focus instead on the “changing
landscape” of persons and personalities in the 19th and 20th centuries.168 I have added (and
earlier) into the title because it is part of my own background and is the unarticulated
backdrop against which the written records I have used are being assessed.
Most of the information in this chapter is taken from Papatupu Books of the Tai Tokerau
area gathered during the early 1900s, when land entitlements according to tikanga Maori
were being investigated by Papatupu Block Committees established under sections 17
and 18 of the Maori Lands Administration Act 1900. The purpose of each investigation
was to facilitate the transfer of title to land from “Papatupu whenua” or customary Maori
land administered by Maori according to their own customary practices, to “Native land”
administered under Pakeha law by the Native Land Court.
The process was fraught with difficulty from the outset. The impossibility of replacing
one set of conceptual understandings about the core and associated meanings of
“whenua” and “land”, one with the other, would give rise to ongoing problems in the
future administration of natural resources in Aotearoa/New Zealand. That the
administrative structures imposed by New Zealand law would rival and eventually oust
existing Maori institutions was a consequence many Maori did not foresee or fully
appreciate in the 1800s. The injustice of such a process is still argued with vigour within
my own extended whanau and on the marae, today. The tension between Maori and the
Crown as to whose mana lies over the land and seas of Aotearoa remains with us today as
the ongoing business of New Zealand law and politics.
167
168
Marsden, supra note 18 at 26.
Young, supra note 13 at 23.
108
The Papatupu information is probably the most reliable written source of information
available about pre-colonial land tenure in the Tai Tokerau region. Its credibility rests on
four factors: first the information is gathered from several rangatira, all of whom are
speaking about the same general area, but each from his own knowledge and experience;
second, opportunity was provided for rangatira to clarify and elaborate points made by
others, or to challenge the veracity of the information presented by others and for the
person challenged to respond; third, the panel members hearing the evidence were also
Maori from within Tai Tokerau, who were knowledgeable in tikanga o te whenua or laws
for the land, and fourth, the hearings were conducted and recorded in te reo Maori and
without translation. This latter was probably the most important factor in maintaining the
integrity of the entire process, as it avoided the inherent difficulties associated with cross
cultural translation discussed in Section A.
On the other hand, each claimant was putting forward his own case with the intention of
maximising the number of shares in defined areas of land that he, and those claiming
under him, would be awarded by the Papatupu Committee. There is every likelihood,
therefore, that kaikorero (speaker/s) emphasised those matters that supported their own
case while playing down those that went against it, or which may have enhanced the
claims of others. There is evidence of collusion between applicants in order to maximise
their own awards while blocking out others who may have been equally entitled. And as
time progressed and a better grasp of Pakeha law developed, the likelihood of Maori
tailoring their korero to suit what was most likely to succeed under European law, also
increased.
However, as a counter to the above, there are instances where rangatira supported claims
that went against their own interests. In some cases rangatira refused to accept
remuneration from claimants for lands earlier “gifted” by their tupuna (ancestors), on the
basis that it would demean the mana of the words spoken by their tupuna if they took
payment.
109
The main source drawn upon for the west coast of Tai Tokerau is “Karanga Hokianga”
the printed version of the Whakarapa and Waihou Block Committee Hearings held in
1903. This is reinforced with information from hearings for the adjacent Waireia Block
held ten years later in 1913 in the Native Land Court.
For the east coast of Tai Tokerau the sources are the Papatupu records for the Te Tii,
Mangonui, Waimahe block hearings in 1904, and the Moturoa and Opito Native Land
Court hearings for Rawhiti that took place during the years 1898 –1901. For the central
Tai Tokerau area, information is drawn from the Matawaia Papatupu Block hearing in
1904, and the Okuratope and Waimate Papatupu Block hearings held in 1902.
These areas all fall within the ambit of the broader general area occupied by Ngapuhi, a
group of affiliated whanau and hapu who trace their ancestory to the tupuna Rahiri. The
hearings provide snapshot examples of what was happening on the land, through the eyes
of the grand-children of those who were born in the pre-contact period, and who are now
senior members of their whanau and hapu.
The west coast hearings for Whakarapa and Waihou, and Waireia, show a pattern of
settled tikanga on the land. By way of contrast the east coast hearings are marked by
raupatu claims and ongoing conflict between the various claimants as to the correct root
of entitlement.
The information taken out of the Papatupu records is not put forward as “a true, finite”
history of the area. Different whanau have different stories relating to the events that
have been recorded, some of which may conflict with what I have chosen to highlight in
this study. I am guided by the words of the rangatira whose testimonies are contained in
these official records.
The information provided by the Papatupu records illustrates how the concepts of
Whakapapa, Whanaungatanga, Mana and Tapu functioned as jural principles within a
110
system of Maori custom law based on tikanga. As such, the main focus of the study is on
the application of the tikanga principles rather than the actors.
Translation from Maori to English often distorts the meanings of words, particulary if one
tries to order the translation according to the grammatical rules of English language. In
order to retain the meaning of some important Maori terms, such as “mana”, “tapu”,
“tuakana”, “teina” and “whenua”, I have not translated them into English. For the same
reason I have sometimes retained a literal translation of the Maori text into English.
Even though the result is awkward and out of step with English rules of grammar, it
retains the “feel” of the Maori meaning, better.
A final question to be addressed when using Papatupu and Native Land Court records is
whether there is a discernable difference between the approach and emphasis of the two
fora? The main differences I discern are these: The Papatupu Committee’s inquiries are
“backward looking”. That is, they look to the historical association between people and
the land – the further the historical link stretches into the past, the stronger the entitlement
of the people making claim. As a consequence, relative newcomers to the land are
treated as having lesser entitlements than those with longer associations that have
continuted to exercise mana on the land. The strongest claim to land is via senior
whakapapa which has been consolidated by the exercise of mana in a continuing line of
rangatira. The Native Land Court, is more pragmatic and business-like in its approach,
dealing with the “here-and-now” with little concern for the future. It uses a series of
tikanga principles which it applies without the same depth of discussion, or apparent
concern for keeping matters stable on the land in the future. One way of viewing this is
to see the Court as replacing the role of the rangatira in determining matters on the land.
Another is to see the Court as refining the principles associated with the exercise of mana
on the land and making them more rule-like. Whichever way I look at it, there is not the
same degree of direct concern for the ongoing wellbeing of the people on the land in the
subjective way evidenced by the actions of rangatira in the Papatupu hearings.
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2.
(a)
WHAKAPAPA
Introduction
In theoretical terms, the concept of whakapapa acted as an organising principle for the
structuring of all relationships conceived of by Maori. In human society the practical
application of “whakapapa” as a jural principle provided a natural order based around
birth and lineage, which upheld continuity of leadership by highlighting ancestral
connections. It also provided a natural hierarchy of authority amongst successive
generations of Maori who were related to each other, based around the relative degrees of
inherited mana that flowed through whakapapa connections. Bloodlines acted as a
conveyancing mechanisms by which mana and tapu could be transferred to successive
generations. In this way, whakapapa provided a group with the necessary order to ensure
stability and continuity of membership.
(b)
Four Tenets of Maori Custom Law relating to Whakapapa
The testimonies presented in the Hokianga hearings highlight four general whakapapa
requirements: first, whakapapa had to be linked to an important ancestor; second, the link
had to be to a specific area; third, the link had to be traceable to a significant event that
anchored the whakapapa to the land, and, fourth, the link had to be maintained.
(i)
Whakapapa – Links to Important Ancestors – Ngapuhi Whakapapa
It was a basic tenet of Maori custom law that a person had to be able to anchor his or her
ancestry to a person of mana from a prior generation, in order to be identified by others as
having senior status within a group.
The people occupying the areas that are the subject of this study are all related, being
descendants of Rahiri, who is one of the most important ancestors for Ngapuhi. Revered
112
Ngapuhi kaumatua, Sir James Henare, (1911-1989), when alluding to the importance of
Rahiri to the wider Tai Tokerau whakapapa, used to say that you were either descended
from Rahiri or from a horse. Sir James died in 1989 but the saying lives on and is still
referred to by kaumatua on Ngapuhi marae as a way of signifying the wide spread of
Ngapuhi whakapapa across the entire Tai Tokerau region. Jeffrey Sissons, Wiremu Wi
Hongi and Pat Hohepa identify many of the hapu who are descended from Rahiri in Nga
Puriri o Taiamai, a political history of Ngapuhi in the inland Bay of Islands area.169
Another common saying often heard on Tai Tokerau marae is “Ngapuhi kohao rau”, or
“Ngapuhi of many holes”. It also refers to the many different hapu who trace descent
from Rahiri and who often united in common ventures.
There are sources of ancestry other than Rahiri in Tai Tokerau. Several waka landed in
the Hokianga region at various intervals and each left behind people who settled at
different places inland. For example, Ngapuhi kaumatua, Cleve Barlow,170 states that on
its journey from Hawaiki, the waka Tinana landed first at Ahipara where it let some
people off and then came down the west coast to Hokianga where it deposited other
people who took up residence at Mitimiti and Whirinaki. According to Barlow, some of
this group later moved across to live on the east coast. Barlow’s statements are borne out
by information in the Papatupu Hearings in which some claimants from the Hokianga and
Te Tii areas also trace their ancestry to Te Rarawa, one of the names held by the
descendants of Tumoana, the rangatira who brought the waka Tinana to Aotearoa.171
Members of Te Rarawa and Ngapuhi inter-married and formed a lattice of inter-related
whakapapa whose individuals either identified directly as Ngapuhi, or could claim strong
connections to Ngapuhi.
A single, complete and unchallenged whakapapa record for Ngapuhi has never been
compiled. To achieve it would require widespread co-operation between an extensive
169
J Sissons, W Wi Hongi and P Hohepa, Nga Puriri o Taiamai, Reed Publishing Ltd, Auckland, 2001, 57-64.
Interview with Cleve Barlow at Kaikohe, 15 June 1997. The origins of Te Rarawa are also referred to by D
Urlich-Cloher in The Tribes of Muriwhenua: Their Origins and Stories, Auckland University Press, Auckland, 2002,
52-62.
171
All the claimants were able to trace connections to Te Rarawa, but choosing Ngapuhi instead produced a stronger
claim to the lands in Hokianga.
170
113
network of whanau. The tapu, or privacy and restrictiveness, still associated with
individual whakapapa in Tai Tokerau makes the level of co-operation necessary for such
a task, difficult to achieve. Whanau are the principal holders of information concerning
their own genealogy, and, historically, the pieces were only rarely placed alongside each
other. The common practice throughout Tai Tokerau has always been for whanau to state
the relevant parts of their own whakapapa at hui as the need arises, in order to discuss and
debate specific issues, and then take it home again. Even if sharing of whakapapa could
be achieved, the knowledge, if not already written down, is being lost as kaumatua
continue to die without imparting it to others. Maori society may soon be reduced to
relying solely on written records and archives, as a means of gleaning whakapapa
information.
The compilation of a single, accurate lineage for Ngapuhi is further complicated by other
practices associated with its public use. Whakapapa are often “collapsed” so that only
the tupuna, considered relevant to a particular discussion or event are put forward, while
all others are left out. Whole generations can be omitted if they are not relevant to the
subject under discussion. Also the term “maatua” (parents) is broad enough to allow
lateral, inter-generational movement, enabling uncles, aunts and more distant relations
from one generation to be cited as direct ancestors, by their descendants. The whakapapa
record produced at any single hui, or gathering, is, therefore, unlikely to be an accurate
record of direct lineal descent.
(ii)
Whakapapa – Links to Specific Areas
A second tenet of Maori custom law was that whakapapa lineage had to be linked to a
specific place where a person was considered by others to be “tuturu”. The term “tuturu”
is hard to translate, but means something along the lines of “where one really belongs, or
where one has the authority to stay permanently and does so”.
114
Tumoana’s descendants are spread throughout northern and central Tai Tokerau. As a
result, specific lines of whakapapa have developed and attached themselves to different
areas.
Rahiri is a descendant of Nukutawhiti, who brought the waka, Ngatokimatawhaorua from
Hawaiki to Aotearoa. He is the main ancestor set up by those who trace their ancestry to
Ngapuhi. The Hokianga region was settled by Rahiri and his descendants, who are uri
(descendants) of his son, Kaharau. The elder son, Uenuku, settled in the Bay of Islands
area of Pouerua. In successive generations, although groups divided and spread out to
settle in various places, they still retained their broader kinship links. Knowledge of
shared whakapapa retained a link between otherwise independent groups occupying
different areas of land. In Hokianga, settled patterns of living on the land were
intermittently interrupted by raids from their Ngati Whatua and inland Ngapuhi relations,
and forays into other areas to lend support to their relatives in battle.
(iii)
Whakapapa – Links through Significant Events
The third tenet of Maori custom law discernable from the Hearings was that the
whakapapa connection had to be anchored by a specific event that attached it to the land.
In the Hokianga region the first person of importance to enter the area of north Hokianga
under claim was Kohinemataroa, the neice of Rahiri. She established her mana and that
of her people on the land by naming various places and occupying the land. According to
Te Tai nobody challenged her entitlement or came on to that land without her
permission.172 In later generations, intermarriage with other groups brought others on to
the land as well. This gave rise to multiple links to the land via whakapapa.
The lack of contest for the lands claimed by Kohinemataroa is due to two factors. Her
senior lineage and superior status as a member of Ngati Rahiri, was respected by local
communities, as being in accordance with tikanga (correct values and practice). The
172
R Te Tai in Karanga Hokianga, ed H Tate, Motuti Community Trust, Hokianga. 1990, 67.
115
second is pragmatic. She had the backing of a powerful military force, Ngati Rahiri, to
call upon to enforce her claim if necessary.
(iv)
Whakapapa – Maintaining Inter-generational Links
The fourth tenet of Maori custom law was that the whakapapa association of a family line
to the land had to continue into future generations unabated or it became “mataotao”, or
cold.
This provided a means of addressing the problems of multiple whakapapa claims to land
based on ancestry alone. It allowed for modern ancestors to be set up as a root of
entitlement, provided that their claim to the land was widely substantiated. Re Te Tai,173
the principal claimant for the Whakarapa/Waihou area, traced his ancestry back 10
generations to the time of his tupuna Te Reinga, a descendant of Rahiri and
Kohinemataroa, stating that only once had the territorial authority of his ancestors to the
Blocks under claim been seriously challenged. That was when Te Reinga, had been
challenged by his relative, Te Wairua, another noted Ngapuhi warrior. The challenge had
not been successful and Te Wairua died in battle.174
The Waireia Hearings provide examples of claims having become “mataotao” because
the descendants of an original ancestor had moved away, died out, or been absorbed into
another whakapapa line. The original root of entitlement set out for the entire area, is
Moetonga, who is thirteen or fourteen generations from the time of the hearing.
However, more recent ancestors who had established specific links to different parts of
the original area, were put forward by claimaints as a source of entitlement. Three
sources of entitlement were put forward by Ngakuru Pene – Taio, Maraewhiti and
Takateauahi, but only Takateauahi still retained links to the land. These had been
maintained by his son, Tarutaru, who had laid down boundaries to his territory that had
173
174
H Te Toko in Karanga Hokianga, supra note 172 at 33-35; Te Tai, ibid at 70.
Ibid.
116
held until the present time.175 Other claimants, such as Wiremu Rikihana, had stronger
whakapapa claims to the ancestor Tarutaru than did Pene, whose tupuna had worked on
the land under the recognised leaders of the hapu.176
As a matter of tikanga, those relying purely on ancestral connection were successfully
challenged by those with “tuturu” entitlement on the basis that they had both senior
ancestral connection and continuing occupation.
Skirmishes amongst the related groups within the Hokianga area were generally minor
disputes over access to resources and brief forays to support relatives in other areas, in
their disputes. The exception to this was the battle that took place for possession of the
territory and resources of Te One Roa A Tohe in the late 18th century between members
of Te Rarawa (then known as Te Tawhiu)177 and Te Aupouri, after which Poroa shifted a
section of his relations from Hokianga to Ahipara, where they lived permanently, having
taken control of the area by raupatu.
In comparison, the descendants of Rahiri who populated the middle and east coast
regions seem to have been engaged in more vigorous disputes with each other over
possession of land and sea resources. During the Papatupu and Land Court Hearings for
these areas, “raupatu” or conquest was frequently asserted as having ousted the authority
of the prior occupant groups. Material drawn from the middle and east coast areas
provides a good source of comparison with Hokianga when dealing with group
territoriality and the strength of individual whakapapa lineage. It shows that the fact of
common descent from Rahiri, although prized, did not prevent competition for resources
escalating into fully-fledged battles over territory between the various hapu.
175
Native Land Court Hearings in, Transcript of Waireia Block Hearings, ed. H Tate, Native Land Court, 1913, 168,
171. See NMB 51. In the Hokianga Hearings rangatira often held entitlements in several adjacent Blocks which
varied according to the strength of their whakapapa links to the land.
176
Ibid at168.
177
H Te Wake in Karanga Hokianga, supra note 172 at 3.
117
(c)
Establishing Whakapapa entitlements to the Lands under Claim
(i)
Senior Whakapapa and the Right to Speak on Behalf of Others
The process by which information was presented to the Papatupu Committees is itself an
example of how whakapapa to the land determined authority and gave rise to rights of
representation. Possession of senior lineage was important in determining who had
standing to represent others publicly, in matters affecting the group. All the speakers in
the Papatupu Hearings began by stating their whakapapa and then connecting it to
specific areas of land. The establishment of a senior line on the land was generally
anchored by an event that linked a specific ancestor to a particular area. The event was
one by which an ancestor had established his or her mana over territory through actions
and words that had been accepted and acted on by others. Those who descended from that
ancestor generally inherited his or her mana. In this way, seniority within a specific
descent group and authority over territory was merged to produce a specific type of
“mana tangata” or personal mana – that of “mana rangatira” or leadership mana.
The individuals who gave evidence before the Committees were all male. Why this is so
is unclear, given that the evidence presented shows that women were also recognised as
exercising authority over the land and its people and were active participants in decisionmaking affecting the entitlements of others. It could reflect a developing, public / private,
post-contact role distinction between males and females. Men had always been the
principal protectors of a group’s physical welfare through their warrior ability. After
European contact, that protective role was expanded to include a growing number of
matters requiring external group representation. Consequently, women, as protectors of
the group’s internal welfare through the establishment of large gardens to feed the group,
were quickly relegated to the domestic role of looking after the family’s immediate
needs. During the time period covered by the hearings, which I estimate to be from at
least the 1600s onwards, (the sacking of Clendon's ship at Hokianga took place in the
1830s but whakapapa accounts predate this by several generations) domestic roles such
118
as gardening and seafood gathering were shared by males and females alike, and
authority within the group was focused around senior lineage rather than gender.
In order to establish his credentials as a person with an authoritative voice for the people
living on the land, each speaker began by reciting his whakapapa (genealogy) links to the
area, in order to establish his mana as a rangatira (leader). In the Hokianga hearings for
Waihou and Whakarapa, Re Te Tai, cited direct descent from Rahiri, Kaharau,
Rongomai, Matauturangi, Te Reinga, Te Kuri, Te Ruapounamu, Kahi, Ngakahuwhero
and Te Tai. He also traced descent from another prominent line beginning with Tupoto,
Kairewa, Tamatea and Takateauahi, even though it was not directly linked to the land
under claim. A third line of descent came from Tangaroa Tupo, Pari, Kiriwhakangahu
and Utuutu. All three are powerful Ngapuhi lineages linked to the Hokianga region. It
was the strength of the first whakapapa line to the land under investigation, however, that
led the other thirteen rangatira claimants and the Papatupu Committee to conclude that
his ancestral claim to the block was the strongest in terms of mana rangatira.178 Some of
the other claims were found to be too tenuous to provide any entitlement to the land,
some to be part of Te Tai’s claim, and others to be upheld by agreements reached
between rangatira with strong entitlements at an earlier time, and therefore, were held to
be binding. During the Hearings for the adjacent, Waireia Block, Re Te Tai’s whakapapa
line to that land was stated as deriving from Moetonga, Puaiti, Kaharaukoro, Kiritai,
Tunuiatawheta, Waimirirangi, Tamatea, Takateauahi, Tarutaru and Kahi.179 His
entitlements under these tupuna were again held by the Native Land Court to be those of
a principal claimant.180
The recitation of whakapapa at the hearings served a dual purpose: It was a public
assertion of senior lineage by virtue of whakapapa links to important ancestors related to
the area under the Maori custom law principle of mana tupuna, or ancestral authority. It
also demonstrated to others that the speaker was a person of knowledge and authority
178
179
180
R Te Tai in Karanga Hokianga, supra note 172 at133-136.
R Te Tai, Waireia Hearings, supra note 175 at 23.
Decision of Native Land Court, ibid at 171.
119
because he possessed whakapapa knowledge, which was highly valued and restricted
information generally held only by chosen members from senior lines. Participation in
the Papatupu Hearings forum was a public assertion of one’s authority to represent the
views and interests of others. It also challenged those who wanted to contest the
authenticity of the speaker and the veracity of the information being put forward, to
demonstrate their own calibre. In this way, rangatira were able to use the Hearings
process as a means of reaffirming their status and relative authority within the group in a
public forum and before their own people.
(ii)
Senior Whakapapa and Territorial Authority
Loyalty born of kinship links and wise leadership ensured continuity of leadership
positions passed to successive generations, unless and until a major disruptive event
occurred to disconnect the claim of the group and/or its leadership from their land.
As time passed and families became more dispersed and distanced from the original
claim, new events could be set up in challenge, as establishing new claims to authority in
opposition to, or replacement of, older claims. Generally, the older whakapapa claim
would prevail as a matter of tikanga as long as occupation was maintained. In the
Papatupu Hearings, the strongest challenges to mana tupuna based on unbroken senior
whakapapa came from those asserting “raupatu”, or “conquest”, as having diminished the
political force of a group on the land to the point where it was no longer dominant, and its
leaders had lost their mana rangatira (administrative powers). Raupatu did not totally
undermine the tikanga (principle) that held seniority of whakapapa lines on the land to be
authoritative, it simply asserted that a new and different whakapapa line was now in
control. During the Papatupu and Court Hearings, speakers often set up opposing claims
based on disparate events having linked their ancestry to the land, or raupatu as having
established their authority on the land.
The Papatupu Hearings were part of a land alienation, transferral and individualisation
process that was foreign to the claimants. They had to take part if they wanted to
120
preserve their land rights in any form. In the process of quantifying land shares, the
importance of whakapapa as a principle that stablilised relationships on the land became a
competitive mechanism for claiming exclusive rights to absolutely defined areas of land
within the hapu territory. Because the Blocks under investigation were relatively small
areas of less than 5000 acres, references to broader territorial claims were not uncommon.
The small size of the blocks being investigated meant that a rangatira could claim rights
of overlordship in one area where his mana was strong, as well as weaker entitlements in
other areas where his whakapapa links to the land were not as strong.
a.
East Coast Claims
In claiming entitlement to lands within the Te Tii, Mangonui area on the east coast, Hone
Rameka claimed that his mana rangatira began with Rahiri and extended down to
himself. He did not provide a full ancestral recitation, and it is not clear whether this is
because his lineage was already known to the Papatupu Committee or because he felt
they ought to have known it. It is not clear, either, whether Rahiri was personally
connected to the land Rameka was claiming, or the statement was made in order to
indicate to others that Rameka was a senior member of a powerful ancestry whose mana
was respected in the region under claim. He then picked up his whakapapa again with
later ancestors, Tuhukeia and Torongare, whose land occupation and ancestry linked back
to Rahiri. This was in response to other claimants who had set Tuhukeia and Torongare
up as part of a separate claim based on raupatu. Rameka stated that they were part of the
whakapapa he had already given, thus attempting to diminish the raupatu claim by
absorbing it into a senior ancestral line already connected to the land under mana
tupuna.181
Later, in giving evidence for Waimahe Block, Rameka agrees that the correct claim for
that block is through the ancestor Auha, who was widely acknowledged as a main
participant in the raupatu of Waitangi northwards to Mangonui. According to Rameka,
however, Auha’s proper entitlement is through senior ancestry from Mirupokai, the
181
H Rameka, Te Tii, Mangonui Waimahe Block Papatupu Committee Hearings, 1904 MB 51, 27-30.
121
founding ancestor of Ngati Miru, who occupied the area before the raupatu took place.
Rameka supported the korero of the “uri rangatira”, or senior-line descendants, whom he
stated were correctly claiming through senior lineage under take tupuna, and dismissed
that of others, whom he claimed were teina, or junior lines seeking to strengthen their
claim by virtue of raupatu.182 According to Rameka the whakapapa lines of those being
put forward as conquerors of Ngati Miru were actually part of the same descent line as
those claiming from Rahiri. Common descent from a single ancestor, Mirupokai, linked
them all together.183
In both examples above, what one claimant is asserting as a complete ousting of authority
by strangers, which would have the effect of setting up new senior lines and a new source
of authority, Rameka is claiming as being in the nature of a whanau dispute that leaves
the original senior descent lines from Rahiri, and the authority over land that goes with
those lines, intact.
One advantage of Rameka’s approach is that it allowed conflicting claims to be
reconciled without either party being totally excluded. However, another claimant,
Hiramai Piripo challenged the order of the tatai, or lineage, put up by Rameka and
produced a tatai to support his own raupatu claims. He agreed that Auha was a
descendant of Mirupokai, but asserted that Ngati Miru were descended from the ancestor
Mirutehe, and not Mirupokai.184
The implication of Piripo’s korero is that the raupatu claimed could provide a
supervening event that started an entirely new chain of senior ancestry from Auha, unless
Rameka could disprove what he said or provide a common ancestor connecting Mirutehe
to Ngati Miru. A new senior line on the land would have the effect of either completely
displacing the pre-existing group’s rights or at least seriously diminishing them. The
hearing body could not decide the matter conclusively in favour of either claimant. Of
182
183
184
Ibid at 122.
Ibid at 126.
Ibid at 189.
122
the six panellists responsible for deciding the claim, three supported Rameka and three
supported Piripo. The shares were equally divided between the two.
The panel was obviously unhappy about unsettling the current occupation of the land,
given that both sides had put forward arguments which could lead to a strong and
legitimate claim to the whole territory under discussion. Therefore it took the practical
expedient of including both. Thus tikanga was upheld on the land and neither party
missed out. However, had a few more generations passed and the claims under raupatu
strengthened, it is just as likely that the prior occupants would have been considered as
having come under the mana rangatira of the new man on the land.
The Papatupu Hearings information presents a society in which almost everyone appears
to have been able to draw upon a greater or lesser degree of whakapapa connection to the
founding ancestor of a region under claim. Although discussion centres mainly on the
relationships and entitlements of those who belonged to the “rangatira” class by virtue of
senior lineage, the closeness of family relationships meant that other members of the
group could also claim the same lineage, even if they did so from a greater distance. The
practice established in the hearing of claims was for those claiming senior whakapapa
lines to include other occupants of the land under their claim. Effectively, this placed
them in the role of “trustees” for their people in terms of the obligations associated with
the principle of “atawhai” that are dealt with in the next part of this section under the
heading of “Whanaungatanga”.
Where raupatu was concerned, however, matters were not so easily resolved. In the Land
Court Hearings held for Rawhiti and its surrounding islands in 1898,185 members of
Ngaitawake, a hapu of central Ngapuhi, claimed the area by virtue of a raupatu that had
taken place in the early 1800s. During the battle they had taken captives from the
resident group, Ngare Raumati. At the Land Court Hearings in 1898, Ngapuhi claimed
that the status of those taken as prisoners had been reduced to that of “pononga”
185
Okahu Hearings, 20 January 1898, NMB 25.
123
(servants).186 This act of subjugation meant that their personal mana and tapu as leaders,
and any prior administrative role on the land, was completely removed. However, two
important Ngapuhi rangatira, Kemara and Wharerahi, had taken women of senior lineage
from Rawhiti as wives after the raupatu. Ngapuhi claimants argued that one of the
women, Puatea had “seduced” Kemara, who already had four wives, and lured him to
move with her to Mapuka Island where they had several children, before he returned to
his own people.187 During the Rawhiti Hearings, Puatea is referred to by Ngapuhi
claimants for the lands at Rawhiti, as Kemara’s “slave wife”, indicating that in their view,
she was taken as part of the conquest of the area.
In the same hearings however, Edward and Henry Williams refer to Puatea as the
favourite wife of Kemara, who was openly acknowledged by Ngati Rahiri and held in
very high regard within the community,188 while Kau, the senior wife from Ngapuhi had a
very low public profile. Descendants of the original occupants from Ngare Raumati
argued that their fire had not been extinguished on the land and that they had continued to
live freely in the area after the battle. They claimed land entitlements under mana tupuna
derived from whakapapa connections to Puatea, whose mana Kemara had lived under
while he was at Rawhiti. They supported their arguments by pointing out that Kemara
had not set foot on their land until after he had formed an alliance with Puatea.189
b.
West Coast, Hokianga Claims
By way of contrast, in the west coast, north Hokianga regions of Whakarapa and Waihou,
the thirteen rangatira who gave evidence in 1903 all agreed that Te Reinga, mokopuna
(grandson) of Rahiri, was the ancestor who held mana tupuna for the entire region under
claim. Te Reinga’s whakapapa traced directly from Rahiri through Kaharau, Rongomai
and Matauturangi. A further ten generations separated him and Re Te Tai.
186
Opito Hearings, 14 January 1898, NMB 25; Okahu Hearings, ibid; Moturoa Hearings, 3 March 1901, NMB 30.
TW Hakuene, Opito Hearings, ibid at 136.
188
H Williams, Moturoa Hearings, supra note 186 at 145.
189
H Te Rangi, Okahu Hearing, supra note 185 at 172-178.
187
124
According to two of the claimants, Re Te Tai and Herewini Te Toko, the mana rangatira
of Te Reinga had only once been challenged during his lifetime, by Te Wairua, who had
been killed during the ensuing battle. Since that time Te Reinga’s authority had been
“tuturu”, or permanent, on the land. His descendants had increased and his mana
rangatira had passed to successive generations.190
The importance of senior whakapapa lines was upheld by the Hearing Committee, who
noted that of the thirteen Hokianga rangatira, only Re Te Tai was able to whakapapa
directly to Te Reinga. The others were descended either from one of his sisters, or
related through marriage. Re Te Tai was also able to trace direct descent from several
other senior lines linking him to the hapu of Ngati Manawa, Te Kaitutae and Te Rarawa,
who were also living in the area under claim. Because he brought together several senior
lines with strong current and past connections to the land, his claim to the area was
considered to be the strongest, by all the other claimants and the Papatupu Committee.
By way of contrast, Heremia te Wake, who was the other main claimant, traced his
ancestry directly from Te Huakioterangi, the brother of Pare, who was the wife of Te
Reinga. He also claimed entitlement under another ancestor, Matangi, who had lived on
the land. The Papatupu Committee established that Matangi had arrived on the land after
Te Reinga had already established his mana and had lived alongside, but under the mana
of Te Reinga. Through intermarriage, Matangi’s descendants had been absorbed into the
resident group and the uri had since been merged through intermarriage. Heremia’s
lineage and his links to the land were therefore, not considered to be as strong as Re Te
Tai’s.
Re Te Tai was the son of Te Tai. Te Tai and his brother Te Hira had exercised mana
rangatira during their lifetimes, often sharing it with others, over the entire area under
claim. The bestowal of mana rangatira over territory in the Hokianga district had been
made to their mother, Ngakahuwhero, by senior relatives after the birth of Te Tai.191
190
191
H Te Toko in Karanga Hokianga, supra note 172 at 33-35; R Te Tai, ibid at 70.
R Te Tai ibid at 79.
125
Later on, Te Tai had made tuku (gifts) of land to the descendants of Matangi that
Heremia was claiming entitlements under.192 In their Decision the committee stated:193
… i te titiro a te komiti, kotahi tonu te haere a nga uri o Te Reinga, me Te Matangi ma, mai i reira,
tae noa mai ki o ratou uri e ora nei. Engari ko te mana nui ki runga i enei whenua, ki runga hoki i
te iwi, no Te Reinga, tae iho ki ona uri.
English Translation
… as far as the committee can see the uri [descendants] of Te Reinga and Te Matangi are united,
from that time right down to their present descendants. But the mana nui [supreme authority] on
these whenua, and on te iwi [the people] as well, was that of Te Reinga and his uri.
In accordance with the tikanga that dictated that senior whakapapa connections to the
particular lands under investigation be given priority, Heremia te Wake had to defer to Re
Te Tai as having stronger ancestral authority on the land. However, in apportioning the
shares for the land to its current occupants, the gifting by Te Tai and Te Hira was taken
into account and those claiming under Heremia were granted full entitlements on the
land.
Other claimants also traced descent from close relatives of Te Reinga, or from more
recent ancestors. Herepete Rapihana traced his ancestry from Taimihitata, sister of Te
Reinga. Wiremu Rikihana traced back to Te Ruapounamu, a female descendant of Te
Reinga, and Herewini Te Toko traced through Te Pekatahi, a male descendant of Te
Reinga. All these ancestors had acknowledged senior whakapapa lines and were able to
exercise a degree of authority over others on the land within the north Hokianga region
during their lifetime. The Committee acknowledged that although the claims were being
made under different mokopuna (descendants), they could all be traced back to Te
Reinga:194
192
193
194
Decision of Papatupu Committee, ibid at 132.
Ibid.
Ibid at133.
126
Ki te titiro a te komiti he kotahi ano enei keehi i runga i te take kotahi, ia a Te Reinga, no te mea,
he uri enei no Te Reinga. Ko Taimihitata, he tuahine no Te Reinga, kua oti te whakamarama. Ko
nga pa, me nga wahi tapu, o tenei whenua, no Te Reinga, tae iho ki ona uri, me te mana nui ki
runga i enei whenua, no Te Reinga, tae iho ki ona uri.
English Translation
In the view of the committee, they are all one case, that of Te Reinga, because they are uri
belonging to Te Reinga. Taimihitata is a sister belonging to Te Reinga as has already been
explained. The pa and the wahi tapu of this whenua, belong to Te Reinga, right down to his uri
and the mana nui [supreme authority] on these whenua was Te Reinga’s right down to his uri.
In the later hearing for the Waireia Block in 1913, three separate ancestral lines were put
forward as connecting to different parts of the block. Re Te Tai claimed under the
original ancestor, Moetonga, and through a later descendant, Tarutaru. Tarutaru was the
first of Moetonga’s descendants to settle permanently on the land and establish a
territorial boundary for Waireia.195 Herewini Te Toko also claimed under Moetonga, but
through another female descendant, Ihengaiti. Ihengaiti had established the boundary for
her area with Tarutaru, at Te Peke.196 Herewini Te Toko also claimed senior ancestral
links to the third portion of Waireia, Pupuwai, through a recent ancestor Ngono, by virtue
of his whakapapa links to an earlier ancestor, Tangaroa Tupo.197 The claims under these
three ancestors were all upheld by the Native Land Court.
(d)
Women with Senior Whakapapa lines exercising Authority
The information provided in the Whakarapa and Waihou Papatupu Hearings and the
Waireia Hearings, shows that in the Hokianga region, women with senior whakapapa
lines also exercised mana rangatira. Women were often put forward as a source of
authority for their land rights by claimants. No distinction is made either by the
claimants or the Hearing Committee between males and females in terms of senior
whakapapa. More women than men appear to have moved permanently off the land and
195
196
197
R Te Tai, Waireia Hearing, supra note 175 at 170.
H Te Toko, ibid at 96 and 170.
Ibid at 96.
127
gone to live with their husband’s people, thereby encouraging a stronger affiliation to
their paternal whakapapa. However, this was not always the case.
Heremia te Wake stated that the mana rangatira of Kairewa’s children living at
Motukaraka pa was derived from their female tupuna Waimirirangi, a descendant of Maui
and Te Huakioterangi.198 Herewini Te Toko says that at the death of Pere Te Tai in 1871,
the lands he was occupying were returned to him and his sisters by Tawio, Te Tai and
Meri Te Tai.199 In this instance women were involved on both sides of the tuku back to
the grantor whakapapa line. In the Waireia Hearings, the main ancestor for the entire
area, Moetonga, is female. Te Toko’s claim to holding the principal authority on the land
at Te Peke, is also successfully argued under his female tupuna, Ihengaiti.
Four women are especially prominent in the ancestry of those linking their whakapapa to
the areas of Whakarapa and Waihou. They are Kohinemataroa, Taimihitata,
Ruapounamu and Ngakahuwhero. These women are part of a single ancestral line to the
area.
(i)
Kohinemataroa200
The first person to set foot on the land around the mid northern side of the Hokianga was
Kohinemataroa. She was the daughter of Punateariari, who was a sister of Rahiri. As she
journeyed across the land she named various places, including Waireia, Waihou,
Oruaanui and Patiki (later renamed Whakarapa). The mana rangatira on the land was
hers because she was the first person who travelled across the land, establishing her links
to it through naming. Her son Rongomai accompanied her on her second visit, during
which she named various other places. After she died her authority on the land passed to
her son, Rongomai, and then down to her uri or descendants. Waihou, Whakarapa,
Motuti, and Whangapatiki all belonged to her, according to Re Te Tai. She consolidated
198
199
200
H Te Wake in Karanga Hokianga, supra note 172 at 4.
H Te Toko, ibid at 34.
R Te Tai, ibid at 67.
128
her claim by working on the land and establishing kumara plantations. While she was
working there she lived at Waihou and Whakarapa. She had another home, Te Kakaho,
on the southern side of the Hokianga River, where she lived as a member of Ngati Rahiri
hapu. Her uri took over her work when she died.
(ii)
Taimihitata
Women with senior whakapapa lines also held their own resources. Taimihitata was Te
Reinga’s sister. She had gardens at Ahimoho, Papakuwhenua, Whakarapa, Te Raekaikoa
and Kiwitangiao. These were reserved for her use and that of the people attending her.
Some were shared with others, having been granted to her as communal gardens by her
brother.201 According to Re Te Tai, Te Reinga also made a tuku of land to the uri of
Taimihitata and Rakeiti and set aside a communal garden for them at Whakarapa.202
Taimihitata married Kaiawha, a warrior chief from Ngapuhi. He took her to live with his
people inland at Taiamai. She was accompanied by other relatives, who remained under
her authority and care. Later she and Kaiawha returned to live in the Hokianga.
According to Re Te Tai, Te Reinga then made a tuku of land to Taimihitata in Whakarapa
so that his brother in law would be comfortable staying there “i raro i tana wahine, i a
Taimihitata, i raro hoki i a Maruwhenua” – under the authority of his wife, Taimihitata
and mokopuna Maruwhenua.203 This indicates that whakapapa connection and the
authority invested in senior lines prevailed over both Kaiawha’s gender and fame as one
of the great warriors of his time.
Rakeiti was Taimihitata’s sister. She lived at Taheke and Waima with others under her
authority. Although also mentioned in the hearings as being of importance by virtue of
her blood connection to Te Reinga, her authority on the land at Waihou and Whakarapa is
not argued, because she lived permanently, elsewhere.
201
R Te Tai, ibid at 90. H Karaka, ibid at 50.
R Te Tai, ibid at 90.
203
H Rapihana, ibid at 54.
202
129
(iii)
Ruapounamu
The mana rangatira of Wiremu Rikihana for Waihou was derived from his female tupuna,
Te Ruapounamu.204 According to Heremia Te Wake, Ruapounamu was also the source of
her husband, Tarutaru’s entitlements to Waireia, even though he was a rangatira in his
own right, because she was a descendant of Te Reinga and Moetonga.205 Ruapounamu
exercised authority within the Hokianga region and is named by Re Te Tai, as the
principal holder of mana, together with Pekatahi and Maro, in the area stretching from the
Motuti river, Waipapa and towards Whakarapa and on to Waihou. He says that they were
the “tuturu” (true and permanent), holders of authority over that area and that no-one else
went there without first gaining their permission.206
(iv)
Ngakahuwhero
Ngakahuwhero was a direct descendant of Te Reinga and was Re Te Tai’s grandmother.
She exercised an immense amount of authority during her lifetime. Whangapatiki
belonged to her. She worked on the gardens in that area with Haaiti, whom Re claims as
a “rangatira” and “tangata tuturu” (man with a true claim), given that he had ancestral
rights to the area through direct whakapapa connections to Tupoto.207 Her mana rangatira
later passed to her children Te Tai and Te Hira, who exercised joint authority over the
entire north Hokianga region.208
Ngakahuwhero married Muriwhenua who was from Ngati Manawa. Her authority was
later shared with her two sons, Te Tai and Te Hira. She made several tuku to individuals
204
H Te Toko, ibid at 51-52.
H Te Wake, Waireia Hearings, supra note 175 at 91-92. The Court held that Tarutaru was a descendant of
Moetonga. The claim of Re Te Tai to Waireia under Moetonga was also considered to be correct. Ibid at 170.
206
R Te Tai in Karanga Hokianga, supra note 172 at 87.
207
Ibid at 88.
208
Ibid.
205
130
who wanted land to make gardens, build houses, or work on the trees in the area.209
Attempts were sometimes made to flout her authority. When she refused to tuku land at
Kaitara to Wirepa, he attempted to pass it to Bishop Pompallier anyway. The transaction
was thwarted by the intervention of her sons, Te Tai and Te Hira.210
While Ngakahuwhero was living at Otupahero, the mana of the area was taken by her.
After a battle was fought there, Takahoorea of Ngapuhi asked her to clear the tapu of the
land and she agreed. Takahoorea came with his root crops, planted them and then ate
them. Those actions cleared the tapu so that others could live there.211
Ngakahuwhero also exercised authority over her two sons, Te Tai and Te Hira, who were
acknowledged as holding mana rangatira over the north Hokianga area of Whakarapa and
Waihou. When they got into a serious quarrel with their elders at Whangape over land
issues, she reminded them of their rangatiratanga (chiefly status and duty to care for
others) with the words:212
E koro213 ma, kia atawhai ki o korua tuakana, ki o korua maatua … E koro ma, me waiho tenei
whenua, mo o korua maatua, tuakana, teina hoki. Meake o korua maatua hoki, I tena mahi. Me
hoki tatou ki Waihou, ki Whakarapa.
English Translation
My sons, be kind to your tuakana, [elders/seniors], to your maatua [parents] … Both of you, leave
this whenua for your maatua, tuakana, teina [parents, elders/seniors and juniors]. This work is for
your maatua [parents]. Let us all return to Waihou, to Whakarapa.
The children agreed and all three shifted back to their holdings in Waihou.
209
K Puhirere, ibid at 62; R Te Tai, ibid at 98, 106.
R Te Tai, ibid at100.
211
Ibid at 91.
212
Ibid at 97.
213
The term “koro” is used within Ngapuhi as a means of friendly address to a young adult male. Alternatively, it is
sometimes used as a shortened form of “koroke”, a casual term frequently used to mean “fellow”. Source: Marara
Te Tai Hook, Ngai Ta Wake ki te Moana, 2 May 2005.
210
131
(v)
Patu Wahine
Women from the Hokianga with senior whakapapa lines were also important enough to
be killed as a means of diminishing another group’s mana, or to have their mana
impinged to the extent that battles were fought on their behalf as utu, (retribution), for the
affront. There are several instances referred to in the Hearings for both Waihou and
Whakarapa, and Waireia, where women either fought in battles or were the cause of
warfare:
Te Ruawai was the mother of Poroa, a fighting chief from the Hokianga. She went into
battle with Te Rarawa against Te Aupouri at Waimimiha and entered into the fighting.
She acquitted herself well, killing a man in hand to hand combat before being killed
herself.214 Her son, Poroa later defeated Te Aupouri in battle and took the southern
portion of Te Wharo One Roa A Tohe under the permanent authority of Te Rarawa.
Koo, the sister of Te Kaka of Te Aupouri was killed for accusing the slaves of Kaha, who
lived at Ahipara, of stealing her kumara, sparking a long series of reprisals between the
two groups before peace was eventually made.215
When Te Koiuru’s garments were worn by others, her husband, Papahia, arranged a taua
to seek utu for the trespass to her tapu and mana.216
When Ngati Whatua kidnapped and killed Te Ripo, a large group of Ngapuhi and those
who later became known as te Rarawa, crossed the Kaipara harbour to seek utu, sparking
the battle which earnt them the name “Te Rarawa”.217
214
H Te Wake in Karanga Hokianga, supra note 172 at 10.
R Te Tai, ibid at 76.
216
Ibid at 85.
217
Ibid at 126.
215
132
(vi)
Men living Under the Authority of Women of Senior Lineage
The Papatupu records also show that senior lineage prevailed over gender in marital
relations. It was usual for senior women to take their relatives and servants with them
when they went to live in other areas with their husbands and to maintain independent
control over them.
When Te Tai’s daughter, Tuha, married Puriri against her father’s wishes he banished her
to Whangapatiki. She took others with her for company. While there she held the mana
for that land by virtue of her senior lineage. Puriri accompanied her and lived there under
her authority. Re Te Tai worked with Tuha and Puriri on her gardens. After she died
Puriri continued working there by himself. When he was near death and gave his ohaki
(death bed statement), he acknowledged his subordinate position on the land and asked
Re Te Tai to return there, to his home:218
E koro, ko au te kai tahu ahi a o matua ki runga ki Whangapatiki, i o tupuna, tae noa mai ki o
matua. Ko tenei ka mate nei au, me hoki koe to kainga noho ai, ki Whangapatiki, ki te Hiahia
English Translation
My son, I was the one who lit the fires for your parents at Whangapatiki, from your ancestors right
down to your matua [father]. Now that I am nearly dying, you return to your place to stay at
Whangapatiki, at Te Hiahia.
On the authority of those words, Re Te Tai returned to Whangapatiki.
In the Waireia hearing, there are also instances of male relatives of women who had
married into a senior line being gifted land because of that relationship. Ngono was the
father of Kaimanu who had married Kahi of Waihou, the son of Ruapounamu and
Tarutaru. He was granted land entitlements because he was father in law to Kahi. Later
on Ruapounamu asked Ngono to tuku the land to the uri of Ngawha, who had been killed
218
Ibid at 88.
133
on the land. Ngono agreed and the land was passed to Punakiwai and Kaurehu. After
that they all lived there together.219
(e)
Conclusion
Whakapapa connections produced strong bonds of affection and loyalty between whanau
members in pre-contact Maori society. Whanau generally married relatives from within
their own ranks. Siblings often lived together for long periods of time, even as adults,
and after marriage. Individuals frequently moved residence and accompanied each other
on journeys to other places, taking those under their authority with them.
While senior lineage was a principal determiner of who exercised authority within a
group, there was no strict rule of primogeniture, whereby authority passed to the eldest
child, usually male. Once the ancestral connection to land had been formalised and
accepted by others, senior siblings in later generations all inherited the potential to
become rangatira irrespective of gender. The main determiner of authority appears to
have been the ability to lead others and to look after the needs of the people.
Te Reinga’s two sisters, Taimihitata and Rakeiti exercised independent mana in different
areas of the Hokianga. When Taimihitata moved to Taiamai she maintained authority
over those who accompanied her. When Kaiawha came to live in Hokianga with her, he
did so under her authority. Rakeiti lived at Taheke and Waima with others under her
authority. That the authority of the sisters was acknowledged outside the territory to
which their ancestral land connection directly attached, is due in large measure, to the
respect given to the seniority of their whakapapa line by their close relatives in other
places.
The pattern in Hokianga indicates a class of rangatira drawn from close whanau, who
protected their bloodline and its connection to the land through marrying close relations.
However it does not appear to rigidly adhere to first born, or males as holding overall
219
Ibid at 91.
134
authority over people and land. It points instead, to authority being shared by members
of the whanau, who may be siblings, but who could also be more distant relations
invested with mana by elders. Continuous fighting on the east coast makes it difficult to
draw a stable pattern for the area, because the claimants are not a united group and the
raupatu claims are very recent, having occurred within the last three or four generations.
135
3.
WHANAUNGATANGA
(a)
Introduction
The Maori of Te Ao Kohatu perceived the world as kinship based with everything having
its own natural place and function. The idea of kinship as an inclusive structure
extending beyond human society to include all things, provided the mental framework by
which Maori assessed the world and constructed it as a series of interlaced relationships.
As a microcosm of the wider universal whakapapa, human society was also based around
ideas of belonging and inclusiveness and an identity gained through affiliation to one’s
blood relatives, past, present and future.
Within this arrangement, the principle of Whanaungatanga acted as a second ordering
principle of Maori custom law, by highlighting another dimension of the Whakapapa
process. Whereas Whakapapa, strictly applied, highlighted lineal descent, hierarchy and
the authority that went with “senior” lineage within a kinship system, whanaungatanga
highlighted lateral links within the whakapapa relationship, emphasising “relatedness”
and the obligations inherent in those kinship relationships.
Whanaungatanga had a set of attendant principles and associated expectations, which
guided the authority and actions of those who exercised authority over others. The
principle of “aroha” was informed by the notion that generosity ought to be shown
towards one’s close kin. On the other hand, practices associated with “utu”, were based
around the idea that wrongs to kinfolk ought to be repaid.
In this part of my study, I examine “whanaungatanga” as a principle that highlights
kinship links, and the practices associated with the supporting principles of “aroha” –
affection for one’s kin, and “utu” – sanctions imposed for wrongs committed against kin.
136
(b)
The Importance of Kinship Links
(i)
Kinship Links and Group Identity
The basic economic and social polities identifiable within the Hokianga Hearings for
Whakarapa and Waihou are the whanau (extended family), and the hapu, a group of
blood-related individuals clustered around a central leader. Several related groups lived
in the area. Most of them were able to trace descent from a single ancestor, Te Reinga,
and through him, further back to Rahiri. Intermarriage had reinforced these links and
extended them to whanau and hapu groups living outside the Hokianga area.
The closeness of kinship ties encouraged movement within Tai Tokerau to Muriwhenua
in the North and Tamaki (Auckland) in the south, and beyond. Sometimes individuals
remained with relations, marrying into the group and becoming part of the whakapapa of
its future generations. Ngamotu, for instance, was the daughter of Tarutaru, a Hokianga
rangatira who married her relation Te Pa and became the main ancestor of the people now
living at Ahipara and Pukepoto in the Far North. At other times they returned home and
married within their own, or a closely related, group. Marriage between close relations
was not unusual. Strategic marriages in order to consolidate existing control over
territory in senior lines and to maintain and increase group strength through reinforcing
familial loyalty, were common. For example, Taurapoho and Ruakiwhiria, were
mokopuna of Rahiri, and first cousins. Their marriage brought together the whakapapa of
Rahiri’s two sons, Kaharau, who held authority within the Hokianga area, and Uenuku,
whose authority was in the Bay of Islands area.
Rangatira males often took multiple wives, which extended their links to other groups.
The Ngati Rahiri rangatira, Kemara, for instance, is known to have had at least five
wives, including Puatea of Ngare Raumati.
137
It was common practice for children to be sent to live with their relations in other places.
While this was based on affection, it also strengthened whanau links with extended
family. These “fosterings” were not always successful. According to te Rarawa
kaumatua, Ngakuru Pene, when Pokaia from Ngapuhi let his son be taken to live with
relatives in Ngati Whatua, the boy was killed, thus sparking a long running and vicious
feud between Ngapuhi and Ngati Whatua.220 A more successful example is that of
Rikihana, who was taken from Hokianga by his uncle, Muriwhenua, to live with his
relations in Ngati Whatua. He was later asked by his Hokianga elders to return home to
become a rangatira for his people in Hokianga who were without a leader.221
Where “fostering” was successful, the family ties created often came in handy later in life
when the home group needed assistance. The Ngapuhi ancestor Tarutaru, for example,
placed his seven children strategically in different areas around the mid Tai Tokerau area
in order to consolidate his political links within Ngapuhi. The children later became
leaders in the areas to which they were despatched. His daughter, Ngamotu became the
main ancestor for the Pukepoto, Ahipara area; Tungutu went to Takahue/Peria;
Pakurakura went to Herekino, Manukau and Waikeri; Kahi remained at Waireia;
Kahuwhakarewarewa was sent to Taumarere, More to Peria/Kaeo and Manihi remained
in Hokianga.222 In later years the actions of some of those children and their followers in
battle gave rise to the iwi name “Te Rarawa”, (in reference to the extreme desecration of
tapu that took place before a battle with Ngati Whatua),223 thus demonstrating the
advantages of strong inter-group affiliations. Even if help was not forthcoming from
one’s relatives, if a group was decimated in battle, any survivors could seek refuge with
their relatives in other areas. The strength of support from and between groups was
220
N Pene, Nga Pakanga, Typescript of Manuscript held by writer, 1. Reproduced with permission of Fred Penney
and Cleve Barlow. Restricted access available at Auckland War Museum Library, Microfilm 1165. It is not known
when the information contained in this file manuscript was written down but the archive reference is to it having
been “created” in 1923. I take this to be the time of its collation as a written source of oral information held by Pene.
Pene was also an applicant in the Waireia Native Land Court hearings of 1913. Although his claim was considered
marginal by the Court, this should not be read as diminishing the importance of the record that he wrote down, or his
knowledge of tikanga Maori.
221
R Te Tai in Karanga Hokianga, supra note 172 at 122.
222
Interview with Ross Gregory of Te Rarawa at Auckland, 3 August 1999.
223
H Rapihana, Karanga Hokianga, supra note 172 at 54 and R Te Tai, ibid at 126.
138
dependent on existing loyalties at any one time. These loyalties were in turn, dependant
on the state of the relationship between individuals from different whanau at a given time.
The Waihou and Whakarapa hearings provide evidence of there being great affection
between whanau members so that they often traveled in groups. For example, when
Poroa left the Hokianga to avenge the death of his tupuna who had been killed by Te
Aupouri in the North, he took all his people with him so that they might die or be
victorious as one.224
There is a noticable closeness between male and female siblings. Whakarongouru was
the brother of Ngakahuwhero, who was the grandmother of Re Te Tai, the main claimant
for the Whakarapa and Waihou areas. Although Whakarongouru was a warrior of
renown, he spent a lot of time living and working with his sister and generally seems to
have followed in her wake when he was not engaged in fighting. Both accompanied
Poroa on his journey north to the battle with Te Aupouri at Te Wharo One Roa A Tohe.
On his return, Whakarongouru built a house for his sister and then fetched her from
Whirinaki to come and live there with him. She went, taking her husband, Muriwhenua,
with her.225 Another example occurs with Te Reinga, the main ancestor for the whole
Hokianga region. He was so distraught when his sister, Rakeiti died, that he carried her
around on his back for days, even though she was beginning to putrefy.226
(ii)
a.
Naming of Groups
Augmentation over time
Groups often fractionated along the lines of whakapapa connections for a variety of
reasons. In each generation central actors could break away to form new groups, or move
to strengthen related groups in other areas. Even if the whakapapa line remained linked
224
225
226
H Te Wake, ibid at 9.
W Rikihana, ibid at 44.
R Te Tai, ibid at 125.
139
to the same area, group names could change to reflect new leaders in successive
generations.
Group names were not as important or as durable as one’s kinship links through shared
genealogy. However, despite close genealogical connections, small, discrete groups are
identifiable, each of which operated as an autonomous unit on the land. The observance
of kinship links between whanau, and the maintenance of good relations, was vital to
survival and protection from outside attack. Should relationships sour, relations could be
treated with the same suspicion and hostility as complete strangers.
Whakapapa connections and whanaungatanga links formed a concentric pattern of family
relationships radiating from a central ancestor, or a current leader. So for example, Te
Reinga’s people were known as Ngati Te Reinga, while the people affiliated to his
grandson, Rongomai were known as Ngati Rongomai.227 Likewise, on the northern side
of the Hokianga harbour, Tupoto’s people were known as Ngai Tupoto while his sons’
people took the name of Ngati Kairewa. 228
The current name of a group is sometimes used by speakers, in the Hokianga Hearings,
when referring to the deeds of ancestors that occurred before a particular group name
came into existence. In these instances the name is used as a reference point for entry
into a particular line of ancestry. Apparently distinct and unrelated groups, are, when you
look closely at the genealogy, simply new names for the same people or a large part of
them at a different time or place. It is difficult to decipher a lot of the information
without first working out the whakapapa links between the various people named in the
Hearings information. What is clear is that while the people-scape was always in flux,
the concepts and principles by which they attached themselves to the land remained
constant.
227
228
Ibid at 69.
Ibid at 65.
140
b.
Specific Events
There are several examples in the hearings, of specific events giving rise to new names
being bestowed on groups by outsiders. For example the name Te Rarawa draws its
origin from a battle between people from the Hokianga with Ngati Whatua. The term
“rawa” can be translated here as “extreme”. The addition of the prefix “ra” intensifies the
term which follows to give the meaning of “extremely, extreme”. According to Herepete
Rapihana,229 the name was bestowed on the children of Tarutaru and Ruapounamu, by a
woman from Ngati Whatua who witnessed the actions of Pakurakura, Te Tungutu and
others desecrating a tupapaku (dead body) and other taonga (sacred possessions)
belonging to Ngati Whatua, before a battle.
In his evidence, Re Te Tai includes Kahi in this foray and says that several tupapaku were
lying on enclosed death platforms. They were burnt in a hangi, thus giving rise to the
name Te Rarawa Kai Whare or “Te Rarawa – eaters of houses”.230 The name “Te
Rarawa” has since been applied retrospectively to Tarutaru and Ruapounamu and is used
today as a group name to refer to all their descendants. This battle with Ngati Whatua is
also referred to by Ngakuru Pene,231 in Nga Pakanga o Ngapuhi. Pene challenges the
limited application of the name to the children of Tarutaru and Ruapounamu. He says
that the name should either be restricted to the direct descendants of Te Ripo, the woman
for whom the battle was fought, or extended to cover all those who participated in the
fight with Ngati Whatua. The first of Pene’s views employs the principle of whakapapa,
as determining entitlement to the name “Te Rarawa”, according to direct lineal descent
from the ancestor Te Ripo, as the person over who the battle was fought. The second
option employs the expansive principle of “whanaungatanga”, extending entitlement to
all those [relatives] who took part in the battle. That the name has been successfully
appropriated by the uri of Tarutaru, who were central actors in the desecration, lends
some force to naming requiring active rather than passive participation.
229
230
231
H Rapihana, ibid at 54.
R Te Tai, ibid at 126.
N Pene in Nga Pakanga, supra note 220 at 51-54.
141
Another example of events giving rise to the naming of a group occurs with the naming
of Te Aupouri. According to Pene, a battle took place between the rangatira Ikanui and
Painga at Nukupure in Whangape. Painga died and Ikanui was saddened because it
meant that reprisal would be sought. He married his daughter to one of Te Painga’s uri
but knew that that would not be enough to avoid reprisal. So he decided to move his
people out of harms way by shifting further north to Muriwhenua. Before they left they
dug up all their tupapaku, put them inside a whare and burnt them. The smoke from the
fire was the reason they stopped calling themselves Ngati Aranui and took the name Te
Aupouri.232 Another version is provided by Re Te Tai in the Waihou and Whakarapa
hearings.233 He says that a dispute arose between Ngati Te Reinga of Hokianga and Ngati
Te Awa of Whangape over territorial fishing rights. Ngati Te Reinga went to Whangape
where Ngati Awa were in their pa at Makora. A battle was fought and the people were
crammed into the house and it was burnt. The name “Aupouri” was bestowed because of
the sadness that settled over Whangape. The survivors moved to Ahipara and their
numbers increased until they extended all the way to Muriwhenua (North cape). There
may be other versions of the naming of Te Aupouri. These examples demonstrate how
names came about through important events affecting a group.
(c)
(i)
The Principle of Aroha – Benevolence toward Kin
The Sharing of Authority and Leadership within a Group – Teina/Tuakana
and Tupuna/Matua status.
The existence of a rangatira class drawn from those with senior whakapapa lines appears
to have been the practice in the Hokianga. However, the exercise of this authority was
constrained by two things. First, rangatira were expected to look after the needs and
general welfare of one’s relations on the land. Second, a protocol existed requiring
232
233
N Pene, ibid at 128.
R Te Tai in Karanga Hokianga, supra note 172 at 75.
142
deference to members of the parent generation, irrespective of their status within the
group.
The affection for relatives, and respect and deference to elders, was not automatically
extended to “outsiders” unless they could establish whakapapa links to the group.
Otherwise, they were treated with suspicion and distrust as trespassers on group territory.
The terms “matua” (parents) and “tupuna” (elders) appear throughout the korero for
Waihou and Whakarapa, alongside “tuakana” (senior) and “teina” (junior/younger) and
are used as general terms of reference to indicate the relative status of group members.
In the Papatupu Hearings, members of the older generation refer to younger members of
the group, including those with senior lineage, as “teina”. Likewise, deference is shown
when a person of senior lineage is referring to an elder from his or her parents’ generation
through use of the term “matua”. “Matua” is used not only to refer to biological parents
but is an extended term including all blood relations belonging to the parent generation.
“Tupuna” and “tuakana” are used in the same sense to indicate generational seniority. In
terms of personal mana, this generational status appears to have outranked that accorded
to senior birthright by virtue of whakapapa lineage.
The older generations, or “maatua”, were very important within the group. The advice of
elders was regularly sought and constantly adhered to by rangatira. Their approval was
generally viewed as a pre-requisite to the rangatira exercising his or her authority in
matters affecting the group. With the support of the elders, the pronouncement of a
rangatira had the force of absolute authority, whether dealing with external matters or
with internal administration. In authoritative decision-making, it was the highest
temporal authority known to Maori in Tai Tokerau.
The application of the principle of “maatuatanga” (eldership – my term), led to some
interesting outcomes. For example, when Te Rarawa went to assist Ngati Whatua in
battle and left Te Pekatahi, an old warrior of repute, at Mataraua Pa, he took umbrage at
143
being left behind to look after the food. In a fit of pique, he burnt the food from all the
storage places inside the Pa. The first of his relations to return was his grandson, who
feared that the others would beat him for his actions. However, no sanction was imposed.
According to Herewini Te Toko:234
I te taenga mai o Te Rarawa, kaore i ahua ki aua kai i tahuna ra e Te Pekatahi, i te mea, ka tae mai
ki tenei wa, ara, i a Te Hira ma, ki a te Tai ma hoki, koina to ratou tupuna, me to ratou mana.
Koiana ano hoki to matou mana, i te mea, e whakahaere ana i nga tikanga katoa mo runga i te
whenua nei, tae noa mai ki te wa i a raua tamariki e noho nei, ara, i a Te Tai, i a Hohepa Te Tai, i a
Wi Tana hoki, koiana to ratou tupuna me to ratou mana, me to ratou take, tae noa hoki ki te
whakatunga o te keehi a Re Te Tai i Rawene
English Translation
When Te Rarawa returned, they noticed that the food had been burnt by Te Pekatahi. This was
because, right to this time of Te Hira and others, of Te Tai and others too, that was their tupuna
[ancestor] and their mana. It is also our mana, because all the tikanga are still operating right to
this time that their children are living here, that is, to Te Tai, Hohepa Te Tai, and Wi Tana – that is
their tupuna and their mana, and their take [claim] – right to the establishment of the case of Re Te
Tai at Rawene.
Te Pekatahi was a descendant of Te Reinga. One can only conclude from this evidence
that he was held in great esteem and affection by the group, and that his status as matua,
tuakana, and tupuna all came to fruition at the same time, for the rest of the group to have
been so tolerant. There are instances of individuals being despatched for actions with far
less serious consequences than this.
Likewise, when Whakarongouru, another descendant of Te Reinga, returned to Hokianga
after a lengthy absence supporting Poroa in his Te Aupouri campaign at Te Wharo One
Roa A Tohe, and began clearing land currently occupied by members of Ngati Korokoro,
Moetara, who was the rangatira of Ngati Korokoro at the time, is reported to have
removed his own people from the land and greeted Whakarongouru with the words,
234
H Te Toko, ibid at 34.
144
“Haere mai e kara, ka tae mai ano koe te tangata, i te whenua” (Welcome old one, you
have arrived again, the man of the land).235
Moetara was a rangatira from South Hokianga who was a warrior of renown at the time,
and was extending his territory into north Hokianga at the time. The deference shown
toward Whakarongouru, as a prior occupant, can be explained as a combination of an
acknowledgement of his whakapapa connection to the land, his blood link to Moetara,
(whanaungatanga) and his status as an elder (tuakanatanga).
There are few mentions of disputes within groups in the Papatupu Hearings. I asked
Hinerangi Rapihana, Te Rarawa kuia, 236 why this may be so. Her response was that
whanau were very closely linked in the Hokianga area and regulation of the internal
matters of the group was the domain of the elders, who met regularly to discuss issues
affecting the welfare of the group. Young people were permitted a lot of freedom and
encouraged to explore and become independent. Exuberant, boisterous behaviour was
welcomed as indicating potential for the many physical roles that needed filling within
the group to ensure its survival. When individual behaviour caused concern, the elders
met, discussed the problems, resolved the issue and then dealt with the person concerned.
Banishment, such as that of Te Tai’s daughter Tuha, because he disliked her choice of
husband, was a severe penalty sometimes imposed, and people always could leave of
their own accord, but killing members of the one’s own group was not common.
According to Hinerangi, affection for family members meant that tolerance of behaviour
was the norm, unless and until matters began to cause concern. Then the elders would
step in to resolve the matter.
The power of the elders was broad enough to cover all matters concerning the welfare of
the group, at that time. So for example, if a group lacked a leader, the elders of other
closely related whanau met and decided what should be done. Thus Rikihana was
brought back from Tamaki to become a rangatira for his people of Te Hokokeha in the
235
236
W Rikihana, ibid at 44.
Interview with Hinerangi Rapihana at Kaitaia, 17 December 2004.
145
Hokianga region of Tuauru, and the elders invested him with the mana necessary to fulfil
his role.237
The exercise of the authority that accompanied senior lineage, and gave rise to “mana
rangatira”, was thus constrained by the combined mana and power of the group’s elders.
In practice the two were often excercised together, with the rangatira acting as
spokesperson for the group and its elders.
237
R Te Tai in Karanga Hokianga, supra note 172 at 122; H Te Wake, ibid at 20.
146
(ii)
The Duty of Rangatira to Atawhai Kin under their authority
Dying was a public event for those of senior lineage who were not killed in battle. The
responsible role of the rangatira was passed on at his or her death. When a rangatira was
nearing death members of the whanau would gather to hear the restatement of the tikanga
operating on the land. These gatherings were the principal means by which the transfer
of mana rangatira from one generation to another was publicly notified, and
responsibilities handed on to other individuals. In these forums the role of the incumbent
rangatira as trustee for the welfare of his people was established and its parameters set
out.
A graphic example of the process by which the obligations of rangatira for their people
was passed on, is provided by Re Te Tai, in the Papatupu Hearings for Hokianga.
When Te Tai became ill, he summoned his son, Re Te Tai, and set out the responsibilities
he would soon have to undertake. As the mauri and wairua of the recorded korero is
impossible to properly convey in English, I have included the entire Maori ohaki, as
paraphrased by Re Te Tai, before the Papatupu Committee:238
I tetahi po ka karanga mai a Te Tai ki au, ka kii mai: “E koro, kotahi ano aku kupu ki a koe. I
muri nei, kia atawhai ki aku iwi mokai. Kia atawhai ki te iwi i whakanuia ai au, kei whakaaro koe
ki to taha rangatira. E nui ana tena taha ou. E nui ana o maatua, o tuakana, o teina hei hapai i tena
taha o koutou, engari me atawhai koe i enei maatua ou. Kaore he kainga o enei o maatua. Ko to
ratou nei kainga ke tera, ko Whirinaki. Naku tenei kumenga mai, i kitea mai ai ratou ki konei, na
maua ko Ngakahuwhero. Ko tenei whenua, e nohoia e taaua nei, kei au. Ko tenei whenua, he mea
tuku na oku maatua ki au, i mea ai au ki a koe, kia atawhai ki o maatua, ko te iwi tenei i hutia ake
ai tenei whenua, i roto i te moana. Me i kore te kaha o taku taha mokai ki te hapai i au, e kore e
kiia he whenua te whenua, he tangata te tangata, e noho nei. Ko tenei whenua, he whenua e riro
ana i a Moetara. Koia taku kupu ki a koe kia atawhai ki taku iwi mokai. Titiro atu hoki ki o
maatua nunui, e noho mai ra. Kia mahara ki o maatua mo Whakarapa. He whenua kai huihui
tenei, na ratou, i nga ra e ora ana o maatua, me o tuupuna. Ahakoa te whenua nei kei roto i o maua
ringaringa e pupuri ana, kia mahara ko o maatua ki Whakarapa. Hei taunga iho o aku kupu ki a
238
Ibid at105.
147
koe, kia mahara koe ki taku iwi mokai ki Whakarapa, kei warewaretia e koe. Ko te rohe o
Waihou, me Whakarapa kei Waipapa, ka tutuki ki Herepahore. Ko Te Hiahia, ki a koe tenei, ki a
koutou ko o tuakana, teina, maatua hoki. Kia mahara ki o tuaahine mo tenei whenua.”
Mo nga uri o Whatiia tenei kupu aana, “Kia mahara ki to tuakana pakeha nei.” Mo Taui raua ko
Hori tena kupu aana. “Hoiano aku korero ki a koe mo runga mo tenei whenua e noho nei taua.
Kaore aku korero mo Waihou. I korero ai au mo Waihou, na te mea, kei au tuturu tenei whenua.”
I tena wa e tangi mai ana a Puriri, kua mohio ke ia he aitua. “Ko Te Papa, kei a koe. I te kupu
taku ki a koe mo tena whenua, timata i Kohatuhapai, ka ahu ki roto i te awa o Toungarangara, ka
ahu ki runga, ka marere ki te taha ki waho o Te Papa, kei pokanoa koe ki te pupuri i tenei wahi
mau, ara, i te taha e ahu mai ki Kohatuhapai. Ko tena whenua kua whakahokia atu e au ki a
Kereti, mo te tapahanga o Te Ngawha. Ko aku tukunga whenua ki o maatua i roto o Whakarapa,
kaua koe e whakararuraru.” Tera atu te roanga o aana kupu. Ko ena korero katoa aana, i rongo
hoki a Puriri, ka tango au ki ena kupu ka puritia, me taku mahara ano, e kore e rite i au.
English Translation
My son, there is only one thing I want to say to you. Hereafter, atawhai [be kind] to my iwi mokai
[humble people]. Be kind to the iwi who respected me, you might think only of your rangatira
side. That is a big part of you. You have many maatua, tuakana, teina who will uplift that side of
your people, but you must be kind to these maatua of yours. These of your maatua have no place,
their place is really Whirinaki. I brought them here, where they eventually ended up, it was
Ngakahuwhero and I. I have this whenua where you and I are staying. This whenua was tuku by
my maatua to me, and is the reason I am saying to you, atawhai your maatua, these are the iwi who
hauled this whenua out of the sea. Were it not for the strength of my taha mokai [humble side] to
uplift me, it would not be said that whenua is whenua, and that tangata is tangata, here today. This
whenua would have been taken by Moetara. That is why I have said, atawhai to my iwi mokai.
Look at your maatua of rank, staying over there. Remember your maatua for Whakarapa. It was a
whenua where everyone shared food in the days that your maatua and your tuupuna were alive.
Even though this whenua is being held in our hands, remember that Whakarapa is for your maatua.
As a final word to you, remember to put my iwi mokai at Whakarapa, lest you forget them. The
boundary of Waihou and Whakarapa is at Waipapa, and finishes up at Herepahore. Te Hiahia you
may have, together with your tuakana, teina and maatua as well. Remember this whenua for your
sisters too.
These words were for the uri of Whatia: “Remember your tuakana pakeha.” This was meant for
both Taui and Hori. “This is all I have to say for this whenua on which you and I are staying. I
148
have nothing to say about Waihou. I am able to speak about Waihou as kei au tuturu tena whenua
[that is truly my land].”
At this time Puriri was crying already knowing that there was an omen. “You already have Te
Papa. I have something to say to you about that whenua, starting from Kohatuhapai, go to the
river of Toungarangara, go towards the top, descend to the outer side of Te Papa, you may hold
this place for you without authority, that is, the side coming from Kohatuhapai. That whenua I
have given back to Kereti, for the cutting up of Te Ngawha. You are not to cause trouble for my
tukunga of land to your maatua in Whakarapa.”
There were additional things that he said that were heard by Puriri and which I held on to,
although knowing that I would not be able to fulfil what he had said.
Later, when death was imminent several rangatira gathered to hear his ohaki. During the
hui he asked for a closed audience with his immediate family, and Re Te Tai relates the
following:239
Tae mai matou ki Waihou, ahau, a Tawio, a Te Rakena, a Hoera Tuhiparu, a Te Pahii, a Taniora, e
rua tekau matou. Ka mutu te tangi, ka noho. I taku taenga mai ka mea a Te Tai kia hui atu matou
aana tamariki ki tana aroaro. Ka mea kia waatea nga tangata, kia whai kupu ia ki a matou, ki a
Tawio hoki. Ko tana kupu: “E koro ma, i muri nei kia atawhai, kia atawhai, ki te iwi. Ki te puta
he raruraru ki roto o Manganuiowae, i o koutou maatua, i o koutou tuaakana e noho ake ra i raro,
whakapuehutia te wai o Manganuiowae. Whai hoki ko te motunga o ta koutou ahi e kaa nei, kia
maia ki te kanga o ta koutou ahi, kei tikina mai, kei tineia e te tangata. Kia maia ki to koutou
kainga”. Ka huri aana kupu kia Tawio, “E hoa, hoki mai hei matua mo a taua tamariki na.” “E te
whanau, i muri nei kia mahara ki to koutou matua, ki te whenua ra, ki Te Hiahia. E mara, koutou
ko a taaua tamariki, kia atawhai ki taku iwi mokai.” Tera atu te nuinga o nga kupu a Te Tai; “Hei
konei kia mau ki te tiriti o waitangi hei matua mo koutou.” Kua kite i a Tia, ka hou mai ki roto i te
whare, ka puta ake te kupu; “E hoa, i muri nei kia atawhai ki te tangata.” Whakautua tonutia atu e
Tia, e; “E maatau ana koe ehara au i te tangata he atawhai i te tangata”. Ka kii atu a Te Tai;
“mehemea e kore e kite e koe tenei mea te atawhai, haere mai, taau ka haere”. I te po ka tikina a
Te Manene ki etahi rongoa, kia mauria mai hoki tana patu. Tae tonu mai a Te Manene ki etahi
rongoa, kia mauria mai hoki tana patu. Tae tonu mai a Te Manene i taua po, ka titiro, ka mea” “E
kore e taea, kua tino he.” Katahi ka kokiritia iho te mere pounamu e Te Manene kia a Te Tai, ka
239
Ibid at 109.
149
kii ake a Te Tai ki a Te Manene, “Kia atawhai ki a taua tamariki i muri i au.” Ka tangi a Te
Manene, ka puta iho te kupu: “Ae, ka atawhai au.”
English Translation
We arrived at Waihou, Tawio, Te Rakena, Hoera Tuhiparu, Te Pahu, Tanioro and I, about 20 of
us. After we finished our crying we sat. When I got there Te Tai told us, his children, to gather
before him. He asked the other people to leave so he could speak to us and to Tawio also. He
said: “My children, after I have gone, atawhai, atawhai to the iwi. If there is trouble in
Manganuiowae, with your maatua, with your tuaakana who are staying down there, stir up the
waters of Manganuiowae. Following which, at the fuelling of your fire to be lit, they may come
and get it and extinguish it. Hold fast to your home.” He turned to Tawio and said, “E hoa, return
as matua [father] for our children.”
“Whanau, from now on remember your matua to that land, to Te Hiahia. Friend, you and all our
children, be kind to my iwi mokai.” There were many other words said by Te Tai. “From now on
carry the Treaty of Waitangi as a matua for you all.” He saw Tia entering the house and spoke to
him, “Friend, after me atawhai to the iwi”. Tia immediately replied, “You know that I am not one
to be kindly to people”. Te Tai then said, “If you cannot see this thing called atawhai, come, come
with me”. That night Te Manene was asked to bring some medicine and to also bring his patu. Te
Manene arrived that very night, looked at him and said, “It is no use, he is too far gone.” His
greenstone mere was thrust toward Te Tai, who said, “Be kind to our children, after I have gone”.
Manene cried and said, “Yes I shall be kind to them.”
Ohaki pronouncement laid out the important aspects of Maori custom law affecting the
lands and people of the dying rangatira. It reaffirmed the authority of those with senior
whakapapa links to the land and identified the new leader, chosen from within that
lineage. Te Tai’s ohaki identifies kindness toward people as being the principal
characteristic required of the new rangatira in order to manage the land and its people
well. While this attitude may have been reinforced by the influence of Christianity values
within the area, whanaungatanga alone, without any outside influence, highlighted
obligations toward one’s kin. Te Tai also set out the various land entitlements of those
living on the land and the capacity in which those interests were held. The areas that he
had been granted were passed to Re Te Tai and his family as being exclusively theirs.
The entitlements of those to whom Te Tai had made grants during his lifetime were also
150
set out. That these lands were held “without authority” indicates that the rangatira
retained a broad administrative power of disposition and re-allocation of lands should the
need arise. Te Tai’s ohaki also sets out the responsibilities owed by his successor to
others on the land. He is mindful of those that he and his mother had brought from their
homes in Whirinaki on the south side of the Hokianga river to help them become
established on the land. He reminds his son of the long term obligations owed to these
people as original inhabitants and asks that they be treated with kindness. There is also
advice, given from an old leader to his successor, as to likely areas of dispute in the future
and encouragement to hold fast to his lands and people.
Tikanga also gave rise to a reciprocal duty on those who had been recipients of tuku
(grants of land and resources within the area), to acknowledge that their entitlements
were not tuturu, or permanent to the land. These were also the subject of ohaki. Despite
his ascerbic response to Te Tai before he died, when Tiapakeke gave his own ohaki, he
reminded his immediate whanau of their lesser status and entitlements to land and the
importance of atawhai. Re Te Tai recalled the occasion of Tiapakeke’s death, thus:240
Ka tata Tiapakeke ki te mate, ka tonoa ki au kia kite ia. Ka haere katoa matou, ko aku teina,
maatua, me nga tangata o Motuti. Tae atu matou ka tangi au. Ka mutu, i te po ka karangatia
matou. Ka mutu, ka tu atu au. Ka kii atua au: “Kei kona, e kara, takoto mai ai i tou mate. Kua
pahere atu o taina, ko koe tenei, ko a koutou kupu, me a koutou tikanga mo te tangata, ki te he koe
maua atu a koutou tikanga hei kona mutu ai. To koutou waka e tau nei, ka pakaru i au i muri i a
koe. Ma Te Tai e mau atu tena maramara ki tena kokorutanga, ki tena tumu rae, akina ai e te hau.”
No ena korero aku, katahi ka aue mai a Tia i roto i te whare, ka mea: “E koro, ee, kia atawhai. E,
mau e, kia atawhai, kia atawhai, e koro, ki nga huruhuru o nga wae o o maatua. E Here, e, kei
whakahiihii koe ki a Re Te Tai i muri i au”.
Ko Heremia i tena wahi, kei Te Tuauru e mahi muka ana. E rua aana hokinga ki taua kupu aana ki
a Heremia ra: “E te whanau, kei pokanoa koutou ki te whakahiihii ki a Re Te Tai, mo te whenua e
takoto nei. Ko matou ko oku matua, ara, ko Wharetohunga ma, kaore i pa ki tenei whenua. Ko
tenei whenua i aku teina anake, i a Te Tai raua ko Te Hira. He noho noa ino ta matou noho i tenei
whenua. Kei aku teina ke te mana o tenei whenua. Ko tenei, e koro, kia atawhai i muri nei, ko te
240
Ibid at 119.
151
mea tenei i tonoa atu ai au i a koe, kia rongo koe i taku kupu”. Ka mea atu au: “Ae, mehemea hoki
e rite.” I pena atu ai au, he pouri noku, kei mate wawe taua kaumatua. Ka mea mai kia haere atu
au ki tana taha noho ai, ka haere atu au. Ka korero ano ki au, kia atawhai. Ko aana kupu mutunga
ena, a, i rongo katoa hoki enei iwi i te korero a taua kaumatua ki au, i reira katoa hoki matou.
English Translation
When Tiapakeke was nearing death, he sent for me. We all went, my teina, maatua and the people
of Motuti. On arrival, I cried and at night we were welcomed. I stood and said: “Remain there,
old man, lie there in your near death state. Your teina have all passed on, this is you, and when
you pass on, take all your words and all your customs for the people with you, and let it finish at
that.” Your canoe will be broken by me after you have gone. Te Tai can take the chip of the waka
to that bay, to that headland, to be pounded by the wind”. At those words of mine Tia cried out
from inside the house and said, “Son, atawhai the hair on the legs of your maatua. E Here, you
may jeer at Re Te Tai after I have gone.” Heremia at that time was working flax at Te Tuauru. He
repeated his words twice to Heremia “E te whanau, you might unwittingly jeer at Re Te Tai for the
whenua lying here. We and our maatua, that is, Wharetohunga and others, do not have any
connection to this whenua. This whenua was to my teina only, to both Te Tai and Te Hira. We
are just staying here on this whenua. It is my teina who have the mana on this land. This, my son,
show atawhai hereafter, this is the reason I sent for you, so as you can hear my words.” I then said
“Yes, if it can be fulfilled”. I said that because I was so down hearted that he might die soon. He
asked me to sit by his side and I did. He said again, kia atawhai. Those were his last words and
everyone heard the words of that kaumatua to me as we were all there.”
The relationship between Re Te Tai and Tiapakeke illustrates the complex nature of
whakapapa relationships on the land. The status of tuakana, teina, maatua, were
interwoven to constrain and guide the actions of the person who possessed mana
rangatira. When Re Te Tai inherited the mana rangatira for the region from his father, Te
Tai, Te Tai referred to Tiapakeke as both Re’s “matua” (parent) and his “tuakana”
(senior). There is no mention at all of Tiapakeke’s lack of whakapapa links to the land.
In his ohaki Tiapakeke reinforces the generational distinction between himself and Re by
constantly referring to him as “teina”. At the same time, he acknowledges that Re holds
the mana rangatira of the land on which he lives and implores Re to show kindness to his
152
children, particularly his son Heremia Te Wake, whom he acknowledges as having no
true claim to the area.
(iii)
Tuku as a Vehicle for the Duty to Atawhai
There was little to distinguish the physical living conditions of rangatira from others.
Everyone lived a subsistence lifestyle. Group survival relied on the maintainence of
stable internal relationships and an ability to withstand external attacks. Effective
leadership was pivotal to achieving both. The principle of “Atawhai ki te Tangata”
enabled internal group cohesion to be maintained. The vehicle by which stability on the
land was achieved was through “tuku”, or grants of land made by rangatira so that people
had a place to live on the land. The practice of “tuku” will be dealt with fully in the next
part of this Section dealing with the principle of Mana. It is included here as an example
of the principle of “atawhai ki te tangata” and the duty it placed on rangatira to look after
the welfare of those under his or her care.
According to Re Te Tai, when Pauro Te Rangaihi reported to Te Tai that his “tuakana”,
Tiapakeke, was anxious because he was getting old and had no tuturu (permanent), claim
to the land he was living on, it invoked Te Tai’s duty as rangatira of the group to assist
him. The conversation between Tiapakeke and his children is reported to have been
along the following lines:241
E koro ma, kaore tatou i pa ki Waihou, ki Whakarapa, ki Whangapatiki, ki Motuti, mai i nga
tupuna, tae noa mai ki a matou, kaore i pa.
English Translation
Children, we have no connection with Waihou, Whakarapa, Whangapatiki, Motuti, right from the
time of the tupuna, down to us, we have no connection.
241
Ibid at 106.
153
After pointing out their land entitlements at other places that were derived through his
mother, Tiapakeke had continued:242
Ko tenei whenua i aku teina anake, i a Te Tai raua ko Te Hira, i Te Rarawa tenei whenua. Ki te he
au, kei whakapehapeha koutou ki a Te Tai. Maana koutou e aroha, e atawhai hoki, maana e kore,
hoiano.
This whenua at Te Rarawa was to my teina alone, to both Te Tai and Te Hira. When I die you
might jeer at Te Tai. It is for him to show aroha and atawhai you, if he does not, that is that.
The response from Te Tai at hearing this was “e aroha au ki taku tuakana” (“I feel aroha
for my elder”). When he encountered Tiapakeke at a hui held for another matter, he
made a tuku (grant) of the land Tiapakeke was living on to him and his children. He also
made separate dispositions to the children of Tiapakeke, and later told them to survey the
land.243
At that time, (around the mid to late 1800s), without the tuku from Te Tai, Tia’s
occupation and that of his children would have been without authority under Maori
custom law, because their whakapapa links to the senior line incumbent on the land were
not strong enough to sustain a more durable claim. The reference to Te Tai’s later telling
Tia to survey out the lands granted, while suggesting an appreciation of a Pakeha system
of land tenure that includes surveys, does not appear to have eroded the application of
traditional tikanga operating on the land at the time.
The consideration shown to relatives was more than simply an emotional response to the
needs of one’s whanau. It had developed into a duty that gave rise to trust responsibilities
relating to the preservation and maintenance of one’s whakapapa line. That duty was
satisfied by the rangatira making tuku, or grants of land to others so that they could
provide for their whanau. The duration of the grant was dependant on a number of
242
243
Ibid.
Ibid at 106.
154
factors, including the strength of the whakapapa connection between the rangatira and
grantee.
The duty of rangatira to atawhai others, as manifested in tuku, is upheld by the Papatupu
Committee in its award of land shares for Whakarapa. Having acknowledged the
disparate whakapapa authority (mana rangatira) between Re Te Tai and Heremia Te
Wake, within Waihou and Whakarapa, the Committee confirmed the several tuku that
had been made to Heremia’s ancestors in prior generations by Te Tai, as being in
accordance with tikanga or Maori custom law. This duty was reinforced by Re te Tai’s
own statement that he was bound by the words of his tupuna: “Kia atawhai ki o raua iwi
mokai e noho mai ra i Whakarapa”. (“To help and be merciful towards his ‘lesser’
people living at Whakarapa”).244 The Papatupu Committee awarded shares to those
claiming under Heremia on the basis of their having lived harmoniously together with Te
Reinga’s descendants for several generations and having married into the line.245
In the Waireia Land Court Hearing in 1913, a distinction was made between those who
held “tuturu” entitlement to land through tupuna links, and those who held land by virtue
of “aroha” – benevolence exercised by those exercising mana rangatira.246 The Waireia
hearing shows a clear distinction between “tuturu” title as being linked to senior ancestry
and permanence on the land, ie. mana rangatira, and “aroha” title , which is that of long
term occupants without ancestral links to the land. In my view, this shows the
consolidation of the application of the principles espoused by Te Tai and the other
rangatira in the earlier Hokianga Papatupu hearings, into work-horse principles that could
be easily articulated and applied to the factual evidence presented to the Native Land
Court in later hearings. The process shows the development of tikanga into clearer
principles by the Native Land Court, these being honed in hearings that included many of
the same claimants for several other Blocks within the broader Hokianga area. While the
judges of the Native Land Court may have had a sound appreciation of matters on the
244
245
246
Ibid at 133.
Ibid 132.
Waireia Hearings, supra note 175.
155
land at the time of decision-making, they still lacked the ongoing commitment to people
on the land that typified the rangatira stance in the Papatupu hearings.
(iv)
Conclusion
The above examples demonstrate that while authority remained linked to senior
whakapapa on the land, the principle of whanaungatanga invested it with obligations
owed to other members of the group. Ohaki served to bond the community together by
laying out the “tikanga” operating on the land in a public forum. That tikanga included
recitation of existing whakapapa links to the land, articulation of the various entitlements
of people living on the land, the articulation of any potential difficulties that might arise,
advice on how to resolve them, and the appointment of the successor to the role of mana
rangatira. In this way senior lineage was publicly notified and reinforced, and the
responsibilities of members of the group set out for all to hear. The authority of the dying
words spoken by the rangatira had strong prescriptive force and were generally adhered
to because he represented the combined mana of the group. To disobey them would have
dissipated the group’s cohesion and threatened its survival.
(d)
The Principle of Utu – Sanctions and Reprisals for Wrongs against Kin
While the principles of atawhai and aroha imposed duties on rangatira to look after the
welfare of kinfolk by granting entitlements to land, the principle of utu looked toward
rectifying wrongs that had been committed against members of the group. In essence
“utu” was a seeking of payment to assuage the mana deficit incurred by the victim and
his or her relations, for violations of their whakapapa.
(i)
Categories of Offences
Closeness of kinship meant that an individual’s behaviour was perceived as belonging to
the whole group. This made the group vulnerable for the actions of its members.
Breaches of tikanga identifiable in the Papatupu Hearings can be placed into three broad
156
categories. They are breach of rahui, theft of property belonging to a group or individual,
and causing the death of a relative.
a.
Breach of Rahui
Rahui is discussed in this Section under the principle of Tapu. It may be generally
described as the establishment of an exclusive right of territorial ownership, including use
and possession of resources within an area. These areas were off limits to those who
were not members of the group and whose whakapapa links and whanaungatanga
relationships were not strong enough to gain leniency from the group responsible for
setting the rahui. Breaches of rahui were a common cause of dispute between groups
who, although closely related, viewed themselves as distinct as far as resource use was
concerned. Ngakuru Pene speaks of the retribution sought by Whaiputuputu for such a
breach:247
… some time during the year a rahui was placed on the sea, paua, whapuku and other kai moana
[sea-food]. During the days that the moana was tapu with that rahui, a different hapu, [Ngati Awa
of Waimamaku] came to fish for whapuku off Kawerua.
Whaiputuputu built a raupo waka, paddled out and killed the people who were fishing.
According to Pene, “This is Maori law, if his rahui is placed and is overthrown by
another rangatira, a fight arises for trampling on the law of another rangatira”. 248 While
the setting of rahui was the action of a single rangatira, enforcing it was an activity
usually carried out by the rangatira and other members of the group. It is unlikely in this
instance, that Whaiputuputu would have been able to enforce the rahui on his own.
A further example provided by Pene of groups having to defend rahui they had
established over the sea occurred when the uri of Tuwhenuaroa, who lived at
Haupawhenua, a pa near Ahipara, established a rahui over the sea, which included the
fish, kutai and other sea food. Members of Ngati Awa, Ngati Miru and Ngaitamatea
247
248
N Pene, supra note 220 at 151.
Ibid at 152.
157
breached the rahui by entering into the territory that had been set aside by Ngati
Tuwhenuaroa and collecting shellfish. The people from Haupawhenua pa went down to
challenge those collecting kutai and fish and, according to Pene, “Ngati Awa, Ngati Miru
and Ngaitamatea fell”.249 It is not clear from this information whether those who were
gathering sea food were chastised verbally, beaten, or killed. All three, were acceptable
options. The existence of close whanaungatanga links may have led to greater lenience
being shown to the offenders.
A third example provided by Pene, is that of Whiwhero, who, while fleeing from an
unsuccessful attempt at killing his inlaws at Whangape, was killed for breaching a rahui
set over the sea.
b.
Theft
Theft of property was another common reason for seeking reprisal against a group. The
taking, by Te Kari, of a whale beached at Muriwhenua that had been claimed as
belonging to Nuku, led to Te Kari’s people being wiped out by Te Kaka, who was a close
relative of Nuku.250 The taking of a tui by Te Apanui after visiting his Ngapuhi relations
at Mangawhai led to fighting between the two groups.251
During the Waireia Hearings, Karora Kahuitara, tells an interesting story about the taking
of fern root by Te Hue and his people, which led to a fight with Whanaumai, and the
death of Te Marino, wife of Pakurakura. Pakurakura was the son of Tarutaru, the
eponymous ancestor of Te Rarawa. Tarutaru gathered a war party and captured Te Hue.
He put stakes in the ground and burnt him until his flesh was rubbed to the bone. This
event led to the renaming of the group Whanaumai to Paturahurahu (beaten fern root).252
249
Ibid at 199.
Ibid at 172.
251
Ibid at 185-186.
252
K Kahuitara, Waireia Hearings, supra note 175 at 124.
250
158
c.
Causing the Death of a Relative
The untimely death of a close relative was always a cause for seeking utu from another
group. Responsibility for one’s actions extended to unforeseen consequences. For
example, when Waipoua, the daughter of Te Pahi, a Ngapuhi rangatira, married a pakeha
seaman, he decided to take her on a voyage into the territory of Ngati Porou. The reason
for the voyage was to return Tawaputa, who came from Ngati Porou, back to his own
people. During the voyage, Waipoua felt seasick. Her husband set her ashore and left
her amongst Ngaiterangi hapu, who killed her. Ngapuhi raised a taua (war party), against
Ngaiterangi for her murder. They also raised a taua against the people of Tawaputa, as he
was the principal reason for the voyage.253
An unusual example of the application of the principle of utu for the death of a close
relation is related in connection with Te Reinga, the founding ancestor for the Whakarapa
and Waihou areas of north Hokianga. According to Re Te Tai, his affection for his sister
was so strong that he would not release her to be buried when she died. Instead he
carried her around on his back even though she was rotting and despite the pleas of his
children. The action of carrying her on his back was in direct breach of tikanga which
prevented a rangatira from carrying anything on his back. According to Re Te Tai it took
the death of a close relative, Te Huaki-o-te-rangi, to appease his grief.
The incident is interesting. Many battles were fought as the result of close relatives being
killed by members of other groups, who might also be distant relatives. Battles in reprisal
were, therefore, commonplace. The killing or besting of others in such circumstances
was highly prized and a means by which the victors were able to reinstate and enhance
the mana diminished by the initial wrong.
However the practice of killing a relative of senior lineage to provide company for the
dead is less well documented and provides a unique insight into the psyche of the precontact Maori. I have included the Maori text, in which Re Te Tai describes the
253
N Pene, supra note 220 at 137.
159
circumstances surrounding Rakeiti’s death, and how it gave rise to the name “Te Reinga
kotikoti kaki”:254
Ko tenei ingoa, ko Te Reinga Kotikoti Kaki, i timata mai i a Te Reinga. Ka mate te tuahine, a
Rakeiti, ka pikaukaua e Te Reinga. Ahakoa tono nga tamariki kia tanumia, kore rawa. Ka tiingia
nga tamariki e te whakatuarea ki to ratou matua, e pikau ana i a Rakeiti, me te tangi. Ka tikina e
nga tamariki a Te Huakioterangi, ka patua ki Pukekowhai. Ka mate nga tangata, a, ko nga morehu
ka whati. No kona ka kore atu nga tangata o tena pa o Pukekowhai. Ka mate a Niwa me Te
Reinga, ka penatia ano. Tae noa mai ki te matenga o Te Whitu, ka tikina, ka patua, ka mate ko Te
Uki. E kore oku tupuna e tanumia noatia iho, kia mate raano he tangata, ka kawea ki te wahi tapu.
Ko te take tena, o tenei ingoa o nga uri o Te Reinga kotikoti kaki.
English Translation
This name, Te Reinga the neck chopper, began with Te Reinga. When his sister, Rakeiti died, Te
Reinga carried her around on his back. Although the children begged him to bury her, he would
not. The children were overcome with sorrow and were crying for their parent carrying Rakeiti on
his back. The children fetched Te Huakioterangi and beat him at Pukekowhai. People died, and
the remnants dispersed. From that time the people of Pukekowhai pa deserted it. When Niwa and
Te Reinga died they did the same. Right to the death of Te Whitu, they fetched, beat and killed Te
Uki. My tupuna did not be satisfied with just burying the dead, they killed a person, then
conveyed to the wahi tapu. That is the origin of the name of the descendants of Te Reinga
Kotikoti Kaki.
The practice of killing in order to assuage one’s anger at losing a relative through natural
causes is difficult to rationalise, as other than an emotional outburst born of grief.
However, as it is acknowledged as having been a customary practice in the area, it must
be taken as forming part of the Maori custom law for the region at the time. A possible
explanation may also be that the death was untimely, and attributed to the actions of
another person against whom utu was later sought. This remains supposition however, as
the above evidence clearly sees it in terms of mana of the deceased.
254
R Te Tai in Karanga Hokianga, supra note 172 at 125.
160
Maori were a warrior people living in a society where physical prowess was both
important and necessary for survival. Strong kinship bonds amongst whanau members
meant that if an individual was wronged, the wrong was shared by the entire whanau.
Likewise, wrongdoing by an individual was not seen as his alone, the blame was also
shared by the offender’s entire whanau.
Marriages between senior whakapapa lines did not always strengthen kinship relations
between groups. In his evidence before the Okuratope Block Papatupu committee,
Hirimai Piripo relates how Whakarongo, the sister of Auha and Whakaaria of
Ngaitawake, another group who trace their ancestry from Rahiri, married Kaihu, a
rangatira of Ngatimiru and went to live with him and his people at Waitangi. Her two
brothers decided to visit her. During the visit a dispute arose between husband and wife
concerning the size of the kumara she had served her brothers. Kaihu instructed his wife
to given them smaller kumara. This was an affront to their mana. The brothers left,
intending to return later to avenge the insult. They conveyed the cause of their affront to
Kauteawha, another rangatira from the area and close relation, and asked for his
assistance:255
Ka puta atu te kupu a Auha me Whakaaria e hiahia ana maua kia tangohia nga whenua katoa o te
Waimate hei utu mo to raua oronoatangai iho io raua taokete i Waitangi. Ka puta mai te kupu a
Kauteawha me mate ranei te tangata? Ka utua e Auha kaore me pei atu kia haere ora nga tangata
kia mate ko te whenua anake”
English Translation
Auha and Whakaaria said, both of us want to seize all the land at Waimate in payment for the ill
treatment of them by their in-laws in Waitangi. Kauteawha asked, right to the point of killing?
Auha replied, no, push the people out so only the whenua will suffer.
On their way home, before they reached Pakinga Pa, they received word that
Whakarongo had been killed by her husband’s people. Hirimai paraphrases the response
255
H Piripo, Okuratope Block Papatupu Committee Hearings, Kaikohe, 15 December, 1902, 77.
161
of Auha256 “Ka kiia tonu tia e Auha i tena ra me mate he tangata me mate te whenua”.
(Auha said then, men must die, and the land will die too.)
Under the leadership of Auha, Whakaria and Kauteawha, the people of Ngati Miru and
Wahineiti were attacked at their pa at Pahangahanga, Taumatatungutu, Okuratupe and
Whakataha. Kaihu was killed, and others fled to Waimamaku on the west coast and north
to Mangonui. Later Whakataha, an inland pa, was also taken. After that:257
Ka riro tuturu tenei whenua a Okuratope mete Waimate i raro i te mana o Auha raua ko Whakaaria
mai o reira tae noa ki tenei wahi ko etahi wahi he mea hoko eo raua uri kite pakeha.
English Translation
This whenua, Okuratope and Waimate was taken permanently under the mana of both Auha and
Whakaaria, from that time to this time some places were traded by their descendants to the pakeha.
In the Okuratope Papatupu hearing, Wi Titore gave evidence that Rangitutakipu and
Naana, who were third cousins of Auha and Whakaaria, acted as his “tianara” or generals.
The relationship between the cousins is stated as being that of tuakana and teina.258 In
making the distinction, Titore is acknowledging the seniority of the whakapapa line of
Auha and Whakaaria as it relates to direct descent from Rahiri, and the mana accorded to
their warrior strength and leadership. In the taking of territory, land associations appear
to be less important than warrior ability.
(ii)
Liability Settled by Physical Combat – Seeking Utu
According to Pene259 battles against one’s relations were more vicious than those fought
against non-relations. He describes a battle at Waihounuiarua at Panguru as a battle
between whanaunga and explains its implications:260
256
H Piripo, ibid at 77.
Ibid at 81.
258
W Titore, OkuratopeHearing, supra note 255 at 13-20.
259
N Pene in Nga Pakanga, supra note 220 at 222.
257
162
Ka haere mai te taua a Ngapuhi ki Waihounuiarua, erangi ko tenei whawhai he riri whanaunga.
Erangi ko te whakatauki a te Maori o te riri whanaunga, koia tena ko te riri kino a te Maori. Kia
poto rano tetahi taa ki te mate, katahi ano ka mutu te whawhai a te riri whanaunga. E kore e pena
te riri whakauruuru te tangata. Ki te mea tetahi rangatira kia mutu te whawhai, kua whakaarahia
mai te patu mo te maungarongo e tetahi rangatira. Kua kite atu tetahi rangatira i te tohu o te
maungarongo, kua hapainga mai e tona hoa. Mehemea e pai ana ia ki te maungarongo a tona hoa,
hoi ano kua whakaarahia atu tana patu. Kua mau te rongo kua mutu te wewero. He tohu to tena
whawhai a te Maori. Ko te whawhai whanaunga, hore ona tohu. Me mate katoa ranei tetahi taha
me oma ranei me mutu te whawhai kia puta ai he morehu tangata.
English Translation
The war party of Ngapuhi came to Waihounuiarua, but this battle was a combat amongst relatives.
But according to the Maori proverb, this is the worst battle of the Maori. They fight until they are
nearly all killed, before they stop. A battle whakauruuru tangata is not like that. If a rangatira was
to say to stop fighting, a patu is raised by a rangatira to offer peace. A rangatira sees the sign of
the peacemaking, his mate raises too. If he is in favour of the peacemaking of his mate, he too will
raise his patu. Peace has been made, the spearing stops. That is the sign of the fight of the Maori.
There are no signs for the battle amongst relatives. Until the whole side dies, or runs away, the
fighting must stop so that there are survivors.
Rangatira often called on whanaunga from other groups for assistance in battle against
groups who had wronged them. Pene states that Ngapuhi and Ngati Whatua were
constantly feuding with each other. He says that Ngati Whatua were extremely brave
people as they had no other groups to back them, whereas Ngapuhi had lots of support to
call upon because of their very extensive whakapapa network.261
Pene identifies two types of warfare engaged in by Maori seeking utu. They are
distinguished according to their purpose and conduct as Pakanga Rangatira and Pakanga
Aware. According to Pene, the former is legitimate warfare conducted according to
established rules, making it part of Maori custom law, whereas the latter are barbaric
practices carried out in breach of the protocols relating to rangatira conduct.
260
261
Ibid at 222.
Ibid at 201.
163
a.
Pakanga Rangatira
Pakanga rangatira were battles fought with the intention of there being minimal loss to
either side. Although individuals could be killed, the main aim was to recoup the mana
lost as the result of an offence being committed, by entering into physical combat. In
order to minimise losses between groups, rangatira sometimes arranged a set time, date
and place for battles to take place.
Pene relates how bad feeling had arisen between Te Rarawa on the one hand and Ngati
Wairoa, Ngati Kuri and Te Aupouri on the other. The battle was the culmination of a
series of incidents beginning with the taking of kumara, the death of various relations,
and breaches of rahui. According to Pene, Poroa, who was the leader of Te Rarawa,
asked Te Houhou to settle the matter by battle. He agreed. They arranged the day and
Poroa brought his entire people from Hokianga in order that they might die together. The
group numbered about 1000. Many people were killed but eventually the warriors led by
Te Houhou were overcome. Poroa made peace to ensure that there would be some
survivors. He drew a line on the beach and none of his people crossed it. The line
divided the territory of Te Wharo One Roa a Tohe, the north to the three northern groups,
the south to Te Rarawa, in the battle referred to by Pene as Te One I Haea. 262 A similar
story is told by Re Te Tai and Heremia Te Wake in the Hokianga Papatupu Hearings.
They refer to it, however, as Te Oneroa, being a reference to the beach on which the
battle was fought rather than the dividing line that ended it.263
A further battle between Te Ikanui and Te Painga is also portrayed as being by consent
between the two rangatira because Te Painga’s people had killed some of Ikanui’s
relatives. However following that battle Te Ikanui removed his people permanently from
the Whangape area and moved them to Muriwhenua. The descendants of these people
are now known as Te Aupouri.264
262
Ibid at 86-89.
R Te Tai in Karanga Hokianga, supra note 172 at 77.
264
N Pene in Nga Pakanga, supra note 220 at 128.
263
164
Yet another example of a pre-arranged battle occured between Hongi Hika and Poroa at
Whangatauatia in Ahipara. When Hongi arrived Poroa said to him that the battle would
be carried out on the beach and Hika agreed. So they lined the fighting teams up and
fought. Ngapuhi was defeated and Poroa emerged in front of his taua where he raised his
hand. His people stopped fighting and peace was made.265
The above are all examples of battles that were staged by rangatira to settle accumulated
grievances between groups. The object was to win the battle while also ensuring that
there were survivors. Once peace was made that was the end of the dispute and the loser
accepted the loss and any consequences.
i.
The Role of the Peacemaker
Peacemaking was an important part of the process of inter-group disputes and gracious
winners were well regarded and remembered. When Ngapuhi attacked Puketi Pa and
were defeated, the victorious rangatira, Ngarowiwi and Tutangiora emerged and made
peace. They released the survivors of the defeated group, who numbered around 30. At a
later battle resulting from a dispute over the taking of a whale by members of Ngarowiwi
and Tutangiora’s group, Ngapuhi instructed their warriors that if Tutangiora fell he was
not to be desecrated but was to be covered with a cloak. Furthermore, should Ngarowiwi
speak, his words were to be honoured. By the time Ngarowiwi and his warriors got near
the battle Tutangiora had already fallen. Ngarowiwi raised his hand and called “Stop
killing the people”. Ngapuhi stopped immediately and covered Tutangiora with a
cloak.266
Poroa was one of Te Rarawa’s great leaders. His practice of drawing a line on the beach
to delineate new territorial boundaries, employed in the battle with Te Houhou of Te
Aupouri, was first used when he was still a youth whose “genital hair had not grown very
265
266
Ibid at 195.
Ibid at 99-103.
165
long.” 267 A taua (war party) of Ngapuhi paddled to the Waihou river and landed at Te
Papa in Hokianga. The people from the pa of Pureirei and Rangikaruru went to meet
them at Otupahero. Poroa was amongst them and felled a warrior named Miha. Ngapuhi
fled back to their waka but the tide was out and they were stranded on the beach. Poroa
was one of the first pursuers to arrive there. He felt aroha for Ngapuhi, so lacerated the
earth in the mangroves to stop his people crossing over to kill Ngapuhi. According to
Pene, this was his first peacemaking.
Poroa grew into a rangatira of renown. He later accompanied Hongi Hika to the
Coromandel to seek utu for the death of Te Koperu, who had been killed while visiting
relatives. On the way they fought with Waikato, Hongi leading his men and Poroa his.
Poroa later made peace with the rangatira Potatau, leaving his son Katorimu and 28 guns
with him in order that he too, might seek revenge. Potatau gave him 30 men. On the way
back he and Hika met Pomare and Moetara, two other fighting rangatira of renown from
the Hokianga who were on their way to do battle with Waikato. Poroa advised Pomare to
go back as peace had been made and informed him of the terms. Pomare’s response was,
“Who do you think you are? You are rangatira for yourself and I am the rangatira for my
own ope (group)”. He and Moetara carried on but Hongi returned. Pomare was caught
and killed by Waikato.268
According to Pene, demonstrating superior physical prowess was the prime object of
parekura (battles) in Ngapuhi, rather than totally extinguishing the mana of the opposing
group. Pakanga Rangatira were arranged between rangatira. Warnings would be sent
ahead that a taua (war party) was approaching, in order to provide time to clear the Pa.
Rangatira would gather their strongest warriors and fight in lines with the leader dictating
the battle plan and when it was to cease. Once the rangatira on one side fell, the battle
was stopped by the other rangatira raising his hand. Once peace was made that was the
end of that set of raruraru, or troubles, and the groups withdrew.
267
268
Ibid at 164.
Ibid at 208.
166
Part of being gracious in victory was the ability to return captives alive. When Ngapuhi
fought with Te Arawa at Mokoia in the early 1800s, 200 prisoners were taken at Mokoia.
Papahia asked Hongi Hika for the pononga, or captives to be handed into his care.
Papahia then returned them to Mokoia and peace was made between Te Arawa and Te
Rarawa.269 Those who had been captured in battle lived, but they did so with diminished
mana.
b.
Patu Aware
These were battles where the protocols of pakanga rangatira were not adhered to, or
where insincere gestures of friendship were made and then betrayed. There are several
instances of both these happening in pakanga involving rangatira from the Tai Tokerau
region.
Hongi Hika is described by Pene as “an angry person who did not like saving people”.270
Hika’s penchant for killing is illustrated by Pene’s story, describing events that took place
in 1823, when Hongi and Poroa went to Ngati Maru in Hauraki to clear the death of Te
Koperu. Ngati Maru lived in the Coromandel area. When they reached there Hika
informed the rangatira of Ngati Maru that they had come to make peace. Ngati Maru
agreed and presented a mere (club) and cloak to seal the peacemaking. Hongi and Poroa
departed with their respective groups. They travelled to Waiheke, where Hongi left
Poroa and returned with his group of warriors to kill Ngati Maru in order to avenge the
death of Te Koperu. When he informed Poroa, Poroa’s response is reported to have been:
“E Hongi, yours is not a rangatira cause”. 271
Te Rauparaha is also considered to be a deceitful rangatira for requesting others to do his
killing for him, and to bear the consequences. According to Pene, when Tira Kakahi and
Te Paeoterangi, who were rangatira from Ngapuhi, went to look for their relations in the
southern part of the north island, Te Rauparaha heard that they had reached Tuhourangi
269
Ibid at 44.
Ibid at 144.
271
Ibid at 35.
270
167
region in the middle of the island. He asked Hape, a rangatira from that region, to kill
them, and his wishes were fulfilled. In response Ngapuhi brought 1200 men to seek
reprisal and the battle of Mokoia was fought in which many lives were lost.272
According to Pene Te Rauparaha also sought assistance from Ngapuhi against Ngati
Kahungunu. People went under him from Te Roroa, Ngati Hao, Ngati Toro and Te
Popoto. They fought with Ngati Kahungunu and peace was made by Te Rauparaha.
They cooked kai and Ngapuhi gave their guns to the rangatira of Ngati Kahungunu. They
received cloaks in payment. When they sat down to eat, Ngapuhi interspersed themselves
with their hosts. Te Rauparaha gave the signal and each person struck the person sitting
next to him. Pene notes this as being part of Te Rauparaha’s custom.273 The implication
here is that although Te Rauparaha was respected and feared for his warrior ability, he
lacked the honour that marked the leadership of rangatira like Poroa.
Patu aware were not restricted to events outside Ngapuhi or under the leadership of
“strangers”. Patu aware also occurred within Ngapuhi. Groups would pretend to come in
friendship, or that a taua wahine was being sent, and once inside the pa they would set
about killing.274
Brother-in-laws would sometimes invite their inlaws to a feast in order to kill them.
Whiwhero from Ngapuhi married Te Waiarimonga. He made a feast and invited his
inlaws, including Te Reinga, intending to slaughter them. His wife warned them and they
came prepared to fight. Whiwhero fled with the survivors to Tokerau, where he was later
killed for breaching a rahui.275
272
Ibid at 150.
Ibid at 150.
274
Ibid at 93-98.
275
Ibid at 167.
273
168
c.
Cannibalism – Custom Law Eating Practices
The practice of Cannibalism was part of the customary practice of conducting warfare.
When rangatira fell in battle their bodies were divided up and shared amongst the victors,
each of whom ate a portion.276 This act of desecration signified that the mana of the
individual and his or her people was permanently extinguished. The group’s mana
dissapated and survivors would seek refuge with relatives in other groups. Cannibalism
was a ritual that openly notified the passing of the mana of a rangatira to the victors. Its
enactment symbolised the restoration of the mana that had been adversely affected by the
initial wrongdoing.
When Pakurakura, Te Tungutu, Kahi and others sought utu for the killing of Te Ripo by
Ngati Whatua, they desecrated the dead who were lying on platforms before the battle
took place.277 Although there are several references to this incident in the Papatupu
Hearings for Hokianga, none of them makes it clear whether they used the bodies to fuel
the fire needed to heat their hangi stones, or whether the bodies were placed inside the
hangi and then eaten. Either way, the action was intended to diminish the mana of the
people they were entering into battle with.
If they could not get inside a pa, or overcome its occupants because they were too strong,
those seeking utu would eat their dead instead. So when Ngapuhi could not overcome
Pukekowhai because the people were uri tuwhangai, or (need translation) they disinterred
tupapaku from the wahi tapu and those that had not disintegrated were washed and eaten.
This action settled the payment due for the people that had been killed by the residents of
Pukekowhai.278
However, often the bodies of rangatira were allowed to remain intact as a sign of respect
for the mana of the person, or were returned intact to their relations after the ceremony of
desecration, for burial.
276
Ibid at 39.
Ibid at 50, 51.
278
Ibid at 99.
277
169
(e)
Conclusion
The Papatupu Hearings of the early 1900s portray Maori society in the Tai Tokerau
region as consisting of small groups of whanau clustered around one or several shared
leaders, who lived together and identified themselves as members of the same “hapu”.
Each group occupied a distinct territory, within which various whanau possessed their
own areas.
The principle of Whanaungatanga ameliorated the harshness that may have been caused
had Whakapapa alone determined the way relationships were governed in Maori society.
Authority was shared between the elders of the group, and those with senior lineage. The
role of mana rangatira included the right to exercise authority over others on the land in
the allocating and divesting of land resources. It was constrained, however, by the
principle of “Aroha” which imposed a duty to “Atawhai” or show kindness towards one’s
kinfolk. “Tuku” of land and resources was the main means of demonstrating this. Some
resources were shared amongst families, others were held as family resources
administered by senior members of the family, for family purposes.
The principle of “utu” balanced “aroha” in that it sought payment for wrongs committed
against members of the group. Disputes with other groups were generally resolved with
the support of warriors from related hapu. Warfare had its own set of rules and protocols.
Peacemaking was an important part of resolving inter-hapu disputes. The evidence of
Pene as an early scribe from the Hokianga area is vital in helping our understanding of
these processes.
Overall, the purpose of Whanaungatanga as a principle was to acknowledge and preserve
the family relationships within the group and to maximise its social, economic and
political opportunities.
170
The Native Land Court records are valuable in that much of the same evidence is referred
to, although in far lesser detail, and many of the claimants have already made claims
before the Papatupu Committee for other Blocks of land. These records do not provide
evidence of such a detailed nature as to people’s relationships on the land in the past, or
concerns for the future. The Court is intent on the job of settling matters for the present,
and historical information is important in that it will help achieve that goal. Its approach
therefore, is outcome-oriented and pragmatic – as shown by the distinction drawn
between “aroha” title and “tuturu” title – these being short-hand references to the
whakapapa and whanaungatanga linkages held by individuals to lands that are discussed
in far more detail in the Papatupu Hearings. A notable difference between the two fora is
that in the Native Land Court, great rangatira of immense mana like Re Te Tai, Herewini
Te Toko and others became ordinary supplicants for the court’s justice.
171
4.
(a)
MANA
Introduction
As a general term “Mana” refers to the authority and power possessed by a person, group,
or thing. The belief that mana originated from the atua meant that it was viewed as an
inherent part of the wairua, or spiritual component, of all things. The whakapapa
structure that guided Maori thinking, provided an ordered process and a conduit by which
mana passed to successive generations through kinship. The concept of Whanaungatanga
highlighted the importance of kinship, and the responsibilities owed to one’s kin. These
two “ordering” concepts combined with the substantive concept of mana to produce a
unified, coherent world that became “active” when infused with mana.
When “mana” is used in conjunction with other Maori terms as a jural principle, it
focuses attention on the authority that is inherent in the process, concept or thing to which
it is being attached, and makes it “active”, “substantive”, and “real”. The result is
“power”, “strength” and “motion”. The term “wairua” refers to the source of all authority
being derived from an ultimate source that is spiritual rather than temporal. With the
addition of “mana”, “Wairua” becomes an active spiritual force that permeates and
motivates action in things. “Atua” refers to the various gods known to Maori who are
viewed as the source of all authority – with the addition of “mana”, “atua” becomes the
active will, derived from the personality of the specific atua recognised by Maori. The
term “tangata” refers to humans, either singly or as a group. When “mana” is added,
“mana tangata” refers to the authority that is held and exercised by humans in accordance
with birth lineage and life achievements. The term “tupuna” refers to ancestors. “Mana
tupuna” is the accumulated authority that flows from one’s ancestry, which, as an active
principle gives rise to land entitlements. “Mana whenua”, refers to two distinct things,
the authority and generating power that is inherent in the land as Papatuanuku, and
human territorial authority as it operates on the land.
172
As an active principle, mana waxed and waned. In human society, according to Te Rangi
Hiroa, mana “was not a mysterious, indefinable quality flowing from supernatural
sources; it was basically the result of successive and successful human achievements”.279
However, as Marsden280 points out, the two important aspects of mana, “authority” and
“power”, are essentially different. The first is described by him as “lawful permission
delegated by the gods to their human agents”. Thus, mana is authority that is drawn from
an external source. The second aspect is “power to act”. Mana is the ability to actually
do something physical as the result of using one’s authority in a legitimate way. Te
Rangi Hiroa’s statement reflects only the second, “power”, aspect of mana. He
emphasises successful actions as the physical expression of mana, without taking account
of whether or not those actions were legitimated by authority. Thus “mana” is equated
only with successful outcomes, irrespective of any ethical and moral considerations. In
practice, however, mana was closely circumscribed by the principles of whakapapa and
whanaungatanga. Those who held and exercised mana within a group were expected to
act in accordance with the ethics of both principles if their actions were to be accepted as
“tika”, or “right” and “good”, ie., in accordance with tikanga Maori, or Maori custom
law. Brute force on its own was not tika, or a legitmate use of power, as Poroa’s
reported rejection of Hongi Hika’s and Te Rauparaha’s actions in slaughtering opponents
after peace was made demonstrates, irrespective of how successful the latter were at it.281
In terms of the Papatupu and early Native Land Court evidence, discussions about mana
centre upon the people living on the land, their relationships to each other, and to their
territory. Mana Wairua and Mana Atua are not dealt with in this part of my study as they
are not directly mentioned in the Hearings, even though they must have informed the
thinking of the speakers.
279
280
281
Hiroa, supra note 74 at 346.
Marsden, supra note 57 at 4.
N Pene, supra note 220.
173
In this part of my study I will examine the practical application of the principles of mana
tangata, mana tupuna and mana whenua. My discussion of mana tangata will set out the
relative mana of the individuals identified in the Hearings, in terms of the authority and
power accorded to different status/roles of individual members within a group. Mana
tupuna will look at the two aspects of personal mana attaching to lineage, and mana
tupuna as a basis for land claim entitlements. Mana whenua will look at the use of mana
in establishing and maintaining group territoriality, and the internal regulation of resource
entitlements within and between groups.
(b)
Mana Tangata – Mana of Individuals on the Land
The clearest indications that we get of the distribution of mana amongst the various
individuals identifiable as a stable whanau group are the ohaki of the rangatira when
addressing their iwi before death. Re Te Tai relates the content of both his father’s and
uncle’s ohaki in the Waihou/Whakarapa Papatupu Hearings, as well as that of his relation
Tiapakeke, who belongs to his parents’ generation.282
In Te Tai’s ohaki, everyone within the group is acknowledged by the dying rangatira as
possessing a degree of mana, which entitled them to a rightful place on the land and some
form of tenure.283 The relative strengths of the relationships on the land are set out, and
the message to Re as his father’s successor, and to all the others present, is that the mana
of each whanau member on the land must be respected in order to maintain the cohesion
of the group. While Re clearly has “authority” as the person with senior whakapapa on
the land, he is cautioned on how he ought to use his “power” to further the wellbeing of
the people who are soon to become his responsibility.
282
R Te Tai in Karanga Hokianga, supra note 172 at 97-127.
I use the term “tenure” to refer to a form of right or entitlement to land held by an individual, having been
bestowed by an external authority, and which is accepted as legitimate by other members of the group.
283
174
(i) Introduction –– Whakapapa, Status and Individual Mana
There are two principal ways of describing mana, other than by its derivation and use as
an activating force. They are according to whether the mana possessed is “inherent”, or
“earned”.
The broad whakapapa concept of existence in which everything conceivable was linked,
provided the structure whereby mana was viewed as permeating all things, including
people. However, individuals did not possess the same degree of mana. Those with
senior lineage were attributed greater mana than other members of the group.
Unchecked, this could have led to a rigid and inflexible hierarchy of authority vested only
in senior lines and produced tyranny. However it was held in check by the fact that mana
was also ascribed to an individual as a consequence of aging, and actions that were
considered successful by one’s kin. Warrior ability, gardening ability and peacemaking
ability, provide examples of ascribed mana in the west coast Papatupu Hearings. Defeat
in battle also affected one’s status in society and captives could be stripped of their mana
and treated as “tonotono” (servants), by their captors.
(ii)
Rangatira
The status of rangatira was principally whakapapa based, and reserved to those who held
senior lines. The administrative role of rangatira was often shared amongst members of
the same family as is found with Te Tai, Te Hira and their mother, Ngakahuwhero in the
Waihou/Whakarapa Hearing. Although the main evidence for this is put forward by Re
Te Tai, who is the grandson of Ngakahuwhero, it was accepted as tika by the other
rangatira who gave evidence and upheld by the adjudicating Committee, all of whom
were also local rangatira well versed in tikanga Maori.
The role of rangatira was based around active leadership of a group of people on the land.
That group consisted of close relatives of several generations, those they had married and
brought into the group, distant relatives who may hold stronger whakapapa links to lands
175
in other areas, and pononga taken captive in warfare. A group would often take the name
of the leader of a particular generation, especially if it was someone who had acquired
wide renown for their warrior ability. Hence Ngati Rahiri, Ngati Te Reinga, Ngati Maui,
Ngati Rongomai, gave recognition to groups in the Hokianga who were clustered around
strong leaders in earlier generations.
A good leader displayed the characteristics of aggression necessary for the group to gain
territory, the defensive skills required to protect the resources the group already held, as
well as the compassion and care required to ensure his or her people were well cared for
on the land. The outstanding personage from the Hokianga Hearings, and the material
recorded by Pene in Nga Pakanga o Ngapuhi, who demonstrates all these qualities is
Poroa, who was both a ferocious warrior who killed in battle at a young age, and a
peacemaker whose word, once given, was accepted as binding by his relatives and
opponents alike. He not only moved his people from the Hokianga and relocated them in
the Ahipara region, sometime in the 1700s, but also drew the line across Te Wharo One
Roa a Tohe after the battle with Te Aupouri, which ended the fighting and permanently
established the boundary between the two group territories of Te Rarawa and Te
Aupouri.284 By way of contrast, Pene portrays Hongi Hika and Te Rauparaha as
demonstrating leadership through warrior ability, but as lacking the qualities of honesty,
care and compassion for people that would have made their warfare “pakanga rangatira”
instead of slaughter.285
a.
Mana Rangatira
As far as resource relationships were concerned, the rangatira was the individual who
held the greatest administrative authority within a group’s territory. The evidence from
the Hokianga region portrays the extent of the authority a rangatira held over others’
284
H Te Wake in Karanga Hokianga, supra note 172 at 11; R Te Tai, ibid at 76-77. This division set the boundaries
of the tribal territories owned by Te Aupouri and Te Rarawa that were upheld by the Maori Land Court in the
Investigation of title for Te Wharo Oneroa A Tohe (90 Mile Beach), in 1957. NMB 1957, 126-128. The boundaries
are acknowledged to this day.
285
N Pene, supra note 220 at 35.
176
actions as being extensive. In both the east coast and west coast Hearings the term “mana
rangatira” is used by claimants to describe the authority of rangatira in land matters. His
or her job was to see that the “tikanga on the land” was upheld. In carrying out the role
of “mana rangatira” the word of a rangatira, once given, was his bond and the measure of
his mana. Others relied on it and acted on it as being authoritative. In the Waireia Land
Court Hearings, reference is made to the degree of “management” and “control”
exercised by rangatira. Aperahama Pukeroa says that although he does not know who
had control of Waireia during the time of Papahia and Te Tai:286
But at a later time, Wiremu Tana was to control the affairs of Waireia, and Te Tai was to manage
and control the affairs of Waihou.
The authority exercised by the rangatira included determining the allocation and
disposition of land and resources of the area to those under his or her authority. It also
included making decisions concerning the general welfare and activities of the people
within the group. Thus, when Poroa decided to leave Hokianga and travel north to seek
utu against the people of Ahipara, he gathered all his people and took them with him.
The reason given was that he feared that treachery would occur if he left them behind
without warrior protection, in the Hokianga.287
Women with senior whakapapa lines were also rangatira accorded great mana. Within
the Hokianga region women appear to have been as influential as men in exercising
administrative roles and looking after people on the land. Women are often stated as
founding ancestors. Kohinemataroa, the cousin of Rahiri, crossed the Hokianga harbour
and claimed the area in north Hokianga for her descendants.288 Taimihitata,289 who was
the sister of Te Reinga, held lands and authority within the Hokianga area.
Ngakahuwhero,290 exercised authority over both people and lands within the region. In
286
287
288
289
290
A Pukeroa, Waireia Hearing, supra note 175 at 144.
H Te Wake in Karanga Hokianga, supra note 172 at 11.
R Te Tai, ibid at 66-68.
Ibid at 90.
Ibid at 88, 91, 97, 98, 100,106.
177
the Waireia Block, the founding ancestor, Moetonga, and the modern ancestor Ihengaiti,
were both female. Although these women are generations apart, and located in adjacent
Blocks of land, they all possessed senior whakapapa lineage and exercised authority
within the area during their lifetimes.
An insight into the important role that women played in securing the whakapapa lineage
to the land is given by Re Te Tai,291 when describing the events of his father’s birth.
Ngakahuwhero, Re Te Tai’s grandmother, married Muriwhenua who was a rangatira
from Ngati Manawa. When she was ready to give birth to her first child, Muriwhenua
took her north so that she could be with the elders at Whangape. The rangatira present at
the birth represented a gathering of senior Ngapuhi whakapapa lines from the central Tai
Tokerau area. Tungutu, Pakurakura and Kahi, the children of Tarutaru and Ruapounamu
were present, as well as Muriwhenua’s relations, Pou, Te Whitu, Kingi and Te Haruru.
After the birth, they remained until the umbilical cord had withered and fallen off. Once
the iriiri ceremony of dedication had been conducted for the child, speeches were made to
Ngakahuwhero by her elders. Poroa asked her to bring his nephew back to the mountains
of Waihou, Whakarapa and Motuti. Kahi said he did not want his grandson left at
Whangape or Herekino either, as it was a bad place. Te Whitu agreed. The elders made a
tuku of Waihou, Whakarapa and Motuti to Ngakahuwhero for Te Tai. Kahi is recorded
as having made the tuku and the others as having agreed. Muriwhenua’s relations were
embarrassed by the size of the tuku made. In response, Te Whitu made a tuku of Te
Hiahia to Ngakahuwhero for Te Tai.
What was the nature of the tuku made? It would have been a gift of broad territorial
authority over the areas currently held under the mana rangatira of those making the tuku.
It would also have been in the nature of an invitation to take up a leadership role in the
areas named, including a moral obligation to continue the family strength on the land and
to take responsibility for others living there. The unspoken assurance that backed the
combined words of the rangatira was that their gift would be supported by physical force,
if necessary.
291
R Te Tai, ibid at 79.
178
Ngakahuwhero returned to Whirinaki, on the south side of the harbour, with Muriwhenua
and Te Tai. She later moved across the Hokianga Harbour to Waihou, bringing others
from Whirinaki to keep her company. The mana that Ngakahuwhero accepted for her son
was later shared by him with his brother Te Hira. When Te Tai was an old man and
giving his ohaki, he reminded, Re Te Tai to look after the people his mother had taken
from Whirinaki to keep her company and also to look after his sisters.292
Mana and responsibility for others seemed to go hand in hand, so that as one grew so did
the other. The retention of mana invested by the group in its rangatira depended on how
well it was deployed to improve the wellbeing of the group, and the availability of
optional living arrangements in other places. Close kinship between groups meant that
people frequently shifted from place to place for varying periods of time, to be with
relatives. Not all Poroa’s people left the Hokianga region when he went to Ahipara, some
remained and merged into related groups. Others returned after the battle at Oneroa.
Rangatira status appears to have been gender neutral, and comprised several roles that
were often shared among members of a family. Although modern acknowledgement of
rangatira status links group leadership roles to males, this is probably due to the
importance of the warrior role in protecting the group. On the land however, these
Hearings show that women’s authority was just as strong, and sometimes even stronger,
than that of men. A more accurate role division may have been along the lines of women
holding the land, while men protected it.
(iii)
Tohunga
There is little information provided about Tohunga in the Papatupu and Land Court
Hearings. Brief mention is made by Heremia Te Wake in the Waihou/Whakarapa
Hearings of Te Huakioterangi being subjected to black magic by Rapanga, and utu being
292
R Te Tai, ibid at 105.
179
sought by his relatives for his death.293 In the Waireia Hearings, Wiremu Rikihana states
that “witchcraft” was suspected to have been used against his sister by Hau and Tana Hui,
and that his father wanted to shoot them but was dissuaded from doing so.294 The
Papatupu Hearings took place at the beginning of the 20th Century, less than 10 years
before the passing of the Tohunga Suppression Act 1908. At this time the practices of the
Tohunga would still have been in evidence, and the role of tohunga as conductor of
rituals for the group, still in use.
Tohunga were often senior members of the resident group. Mention is made by Re Te
Tai, of his uncle, Te Hira, having fifty people to look after his needs, and being too tapu
to work on the land.295 This inability to work with the land is at odds with Te Tai’s own
actions as the older sibling and rangatira, of being actively engaged in working on the
land with his people. According to Hinerangi Rapihana,296 the restriction on Te Hira
would have been because he had been dedicated to spiritual matters and wananga
learning – in other words, he was a tohunga. Therefore, physical association with
ordinary things would have infected them with his mana and tapu and made them
dangerous to other people. For this reason he would not have engaged in manual labour.
Why were such matters not given fuller coverage in these Hearings? Possibly because
spiritual matters were considered “in house”, and not directly relevant to the division of
land and change of land tenure system that was taking place at the time. There are other
possible reasons. Christianity had taken firm hold in the area and had supplanted many
of the old belief systems, including those associated with the role and power of the
tohunga. Furthermore, these Hearings heralded the advent of a new system in which the
tohunga had no role to play and the authority of the rangatira would become seriously
undermined. The recognition of “individual shares” in land by the Native Land Court,
replaced the administrative authority of the rangatira and the spiritual sanctions of the
tohunga, with judicial and legislative recognition of an individual’s place on the land.
293
294
295
296
H Te Wake, ibid at 3.
W Rikihana, Waireia Hearing, supra note 175 at 39.
R Te Tai in Karanga Hokianga, supra note 172 at 107.
Interview with Hinerangi Rapihana at Kaitaia on 6 February, 2005.
180
Another reason why tohunga are not mentioned is that there was growing concern
throughout Aotearoa/New Zealand in the late 1800s and early 1900s as to the influence
that was being asserted by tohunga within various Maori communities. Although
tohungaism was not yet a banned practice, the mana of the tohunga appears to have
diminished to the extent that the institution was now widely regarded as a fraudulent
pretense at being able to heal illness. As a consequence, section 16 (5) of the Maori
Councils Act 1900 gave Maori Councils powers "for regulating the proceedings of
tohungas, and the punishment by fine of those (whether European or Maori) who practise
upon the superstition or credulity of any Maori in connection with the treatment of any
disease." This diminution of mana meant that the institution as a whole became subject
to suspicion and may be why Maori avoided any mention of the term in the Papatupu
hearings, even though practices associated with tohungaism undoubtedly continued
within the community.
(iv)
Kaumatua/Kuia
Respect for whakapapa connections meant that ancestry was important in Maori society.
Amongst the living, the idea of respect for senior generations meant that the elders of a
community had great value and were treated with respect. In practice, respect for one’s
elders provided an inter-generational balance to strict adherence to authority derived from
senior lineage alone. Elders supported the younger generation leaders. Before his death,
Te Tai asked Tawio to return to the area “hoki mai hei matua mo a taua tamariki na”
“return as parent for our children here”.297 Young rangatira generally conferred with and
deferred to elders of the group, including distant relatives of lower status. Such
relationships were marked by great affection, as is demonstrated by the relationship
between Re Te Tai and Tiapakeke.
297
R Te Tai in Karanga Hokianga, supra note 172 at 109.
181
The status derived from senior whakapapa, when combined with generational seniority,
produced a strong role for kuia, or female elders, in managing relationships on the land.
Not only did they hold areas of land under their own authority as members of the
rangatira line, but they were also able to control the behaviour of others within the group,
including being able to forestall the imposition of sanctions for offensive behaviour. In
this respect, senior women were able to fulfil the protective role of extending atawhai to
others within the group, by protecting them from physical harm.
So for example, when Kaumatua, an elderly relative from Whirinaki, ran off with a
servant of Kaihu named Pehapeha, they hid in the Whirinaki forest for three days because
Kaumatua believed members of Ngati Tuapango would pursue and kill him. He then
crossed over to Orongotea where Ngakahuwhero was staying and asked her for refuge.
She made tuku of a garden area in order that he could support himself and his new wife.
While tending his garden he was accused of trespassing on the garden of his neighbour,
Pou. He was pursued by Pou, who wanted to kill him. He again sought Ngakahuwhero’s
protection. She intervened and sent him to live at another place, at Raumati. While there
he accused members of Ngati Manawa of stealing his pigs. Ngati Manawa threatened to
kill him for the accusation. Ngakahuwhero once again intervened and ordered them to
leave his things alone. She then sent for Haaiti, another of her relations and asked him to
look after Kaumatua. Haaiti agreed and Kaumatua and his wife were taken to Pongipongi
headland where his task became to light signal fires for the waka at sea.298 Without the
exercise of her authority, Kaumatua would probably have been killed for any one of his
three offences.
Likewise, when Ngakahuwhero’s sons, Te Tai and Te Hira got into a serious quarrel with
their elders at Whangape over land issues, she reminded them of their obligations as
rangatira towards others, with the words:299
298
299
Ibid at 99.
Ibid at 97.
182
E koro ma, kia atawhai ki o korua tuakana, ki o korua maatua … E koro ma, me waiho tenei
whenua, mo o korua maatua, tuakana, teina hoki. Meake o korua maatua hoki, i tena mahi. Me
hoki tatou ki Waihou, ki Whakarapa.
English Translation
Children, atawhai your tuakana, your maatua … Children, leave this land for your maatua,
tuakana, and teina. This work is for your maatua. Let us return to Waihou, to Whakarapa.
The children and their mother shifted back to their lands at Waihou. Although it is likely
that Muriwhenua accompanied the children and their mother, he is not mentioned in
discussions because it was Ngakahuwhero’s authority that was greater on the land in the
Waihou/Whakarapa area.
It was usual for senior women to take their relatives when they went to live in other areas.
Ngakahuwhero was accompanied by her relations when she left Whirinaki and moved
across the Hokianga river to Waihou. Later, when her grand-daughter, Tuha, married
Puriri against her father’s wishes was banished to Whangapatiki, she also took others
with her as company. While at Whangapatiki, she held the mana for that land. Puriri
accompanied her and lived there under her authority. Re Te Tai worked with Tuha and
Puriri on her gardens. After she died Puriri continued working there by himself. When
he was near death he gave his ohaki, which Re Te Tai relates as follows: 300
E koro, ko au te kai tahu ahi a o matua ki runga ki Whangapatiki, i o tupuna, tae noa mai ki o
matua. Ko tenei ka mate nei au, me hoki koe to kainga noho ai, ki Whangapatiki, ki te Hiahia.
English Translation
Child, I am the fire lighter of your father on Whangapatiki, right from your tupuna down to your
father. Now that I am nearly dying, you return to your place to stay at Whangapatiki, at Te Hiahia.
300
Ibid at 88.
183
On the authority of these words, Re Te Tai returned to Whangapatiki and began working
on the gardens. The related interchange is interesting as it shows that although Re Te Tai
was the senior person on the land after Te Tai’s death, he took his authority to return to
the land from the words of Puriri, as his elder, even though Puriri had no authority on the
land.
(v)
Warriors
Warriors were highly prized in Maori society, as they were the primary means of
protecting the group and its resources from outside aggression. Warrior status was
achieved by demonstrating prowess in combat. The battles recorded by Pene in Nga
Pakanga o Ngapuhi show that the prowess of individual warriors quickly became widely
known, and could deter others from making incursions into a group’s territory.
Ironically, warrior strength in one group also encouraged individuals from other groups to
seek out opportunities to prove their superiority. Alliances amongst strong warrior
rangatira maximised the likelihood of a successful outcome when engaging in pakanga
with other groups. Close kinship between groups also meant that alliances could change
in successive pakanga. The Hokianga Hearings highlight the fearsome warrior ability of
several rangatira including Te Reinga, Poroa, Houtaewa, Moetara and Hongi Hika; the
Waireia Hearings highlight Tarutaru as “a huge monster emerging from a pit, striking
terror in his opponents”.301 On the east coast, the Okuratope and Matawaia Hearings
highlight Auha, Whakaaria and Kauteawha, as outstanding warriors. Nga Pakanga o
Ngapuhi reinforces the Hearings evidence and gives details of the pakanga led by these
individuals and others, within Tai Tokerau and other areas.
Women sometimes accompanied men into battle and fought alongside them. Te Ruawai
went with Te Rarawa to Waimimiha, under the leadership of Poroa. She acquitted herself
well, killing a man in hand to hand combat before being killed herself.302 Ruapounamu,
301
302
W Rikihana, Waireia Hearings, supra note 175at 30.
H Te Wake in Karanga Hokianga, supra note 172 at 10.
184
the wife of Tarutaru, is also described as “a warrior” in the Waireia Hearings.303
However, the written records depict men as being responsible for most of the fighting.
Women were often the cause of pakanga. Koo, the sister of Te Kaka, who was a
rangatira of Te Aupouri, was killed for accusing the servants of Kaha from Te Rarawa of
stealing her kumara, sparking a series of reprisals before peace was made.304
Women with senior whakapapa lines were also killed as a way of diminishing the mana
of another group. When members of Ngati Whatua kidnapped and killed Te Ripo at
Maunganui Bluff, Tungutu, Pakurakura and others crossed the Kaipara harbour to seek
utu, sparking the battle which bestowed the name “Te Rarawa” or “the people of
extreme”, on their descendants.305
When Te Koiuru’s cloak was worn by another woman, her husband, Papahia, arranged a
taua to seek utu for the trespass to her mana from those who had worn her clothing.306
Not every action precipitated a violent response. Given that self-sufficient groups were
relatively small, alliances and support from others was needed for success to be a realistic
expectation. Few groups appear to have been large enough to be totally independent in
battle. For this reason, groups often waited until a number of grievances had occurred
before combining to seek utu. Poroa’s decision to attack Te Aupouri at Ahipara was the
culmination of several grievances built up over a period of time, including the death of
his father, Te Pa. The decision by the children of Tarutaru, to attack Ngati Whatua after
the death of Te Ripo was the culmination of several deaths resulting from Ngati Whatua
raids into the Hokianga/Whangape region.
When a group went into battle it remained under the leadership of its rangatira and could
withdraw at any stage. The advantage that Ngapuhi had over other groups was the large
303
304
305
306
H Paaka, Waireia Hearings, supra note 219 at 76.
R Te Tai in Karanga Hokianga, supra note 172 at 76.
Ibid at 126.
Ibid at 85.
185
number of kin groups they could call upon for support. Hence the name “Ngapuhi kohao
rau” or “Ngapuhi of many holes”.
(vi)
Gardeners
For people living at subsistence level, the possession of natural food resources was
paramount to survival. The production of food for the group through cultivating land and
sea resources was also important. Individuals who grew big gardens, were successful at
fishing, trapping and hunting, were attributed mana for their success in these “ahu
whenua” or gardening activities. In the Hokianga region, gardening was a major activity
in which women seem to have taken the responsible role, although men were also
involved. The rules and practices surrounding the cultivation of gardens are not directly
referred to in the Papatupu and Land Court Hearings. The only indication given of the
severity of rules relating to gardening, is that of Pou pursuing Kaumatua to kill him for
trespassing on Pou’s garden,307 and Irihau of Ngati Manawa being stabbed in the leg with
a spear by the son of Te Tihi of Ngati Korokoro, for boasting about his crop of riiwai that
he had just eaten.308 The only elucidation on the reason for this action is Heremia te
Wake’s statement that riiwai were “very tapu at the time”.
The application of tapu to "riiwai" is an example of the extension of existing thinking
concerning tikanga to cover new crops that were introduced after colonisation. The
restrictive nature of the rules and practices associated with the principle of "tapu" is
discussed in detail in the next part of this Section. That riiwai were subject to the same
protocols of behaviour as applied to the growing of kumara would mean that every stage
of their development was subject to restrictions associated with preparing the ground,
planting, weeding, harvesting and storage. In addition, use of the term "tapu" could also
allude to the importance of the crop in an economic sense, and the high value placed on it
throughout the wider community. Boasting about eating something of such high value
offended against community values which highlighted sharing and was likely to have
307
308
Ibid at 99.
Ibid at 11.
186
been construed as an assertion of mana, in an economic sense, over that of the group
being visited.
Senior women within a group exercised authority over their own food producing
resources. Kohinemataroa established kumara gardens when she first entered on to the
land in North Hokianga. Taimihitata had extensive gardens at Ahimoho, Papakuwhenua,
Whakarapa, Te Raekaikoa and Kiwitangiao. Some of these were hers alone while others
were communal gardens shared by the community as a whole.309 According to Re Te Tai,
Te Reinga also made a tuku of land to the uri of Taimihitata and Rakeiti and set aside a
communal garden for them at Whakarapa.310 Ngakahuwhero had several large gardens,
which she worked on with her followers at several places in North Hokianga.311
Gardening areas appear to have been passed from generation to generation, with the main
root of title linking back to the original founding ancestors. Senior lineage does not seem
to have prohibited participation in the manual labour. Te Tai often worked alongside his
mother, uncles and servants in the gardens despite his seniority, and this did not diminish
his mana, rather it appears to have enhanced it. Although Te Hira did not engage in
manual labour to the extent of Te Tai, he also appears to have held the same degree of
authority on the land and amongst the people. In the east coast Hearings, gardening is
not a feature of the claims, instead most derive from raupatu or take tupuna.
(vii)
Pononga
The status of pononga was imposed on pakanga survivors whose mana had been
diminished through loss, or who had been taken captive. In the Hearings, pononga are
referred to only as part of the backdrop against which activities concerning other
members of the group, occur. According to Hinerangi Rapihana,312 the role of pononga
was that of a tonotono, or servant, who did whatever the person who had captured them
309
310
311
312
H Karaka, ibid at 50.
R Te Tai, ibid at 90.
Ibid at 88.
Interview with Hinerangi Rapihana at Kaitaia on 6 February 2005.
187
demanded. Although pononga could become absorbed into the victorious group over
time, she says that they rarely married into the group, as with Kaumatua and Pehapeha,
nor were they treated as equals. To take a pononga as a spouse was to
“whakataurekareka” or reduce one’s own mana in the eyes of the group. Generally,
pononga lived out their lives as servants of their captors, although there are several
instances of rangatira adding pononga to their existing wives. This reasoning explains
why the descendants of Te Puata and Te Kemara, in the Native Land Court Hearings for
Opito in 1898,313 claimed that their tupuna was not a “slave wife” who had been captured
as part of the raupatu of the area, but a rangatira who had maintained her whakapapa
strength and entitlements on the land through strategic marriage.
(viii)
Conclusion
There is no specific gender distinction in the status or roles accorded to men and women
in the Papatupu and Land Court writings. Mana appears to be gender neutral as far as it
applies to authority on the land, and men and women work alongside each other. Men
were dominant in the role of protecting land and people from invasion by other groups,
and, therefore more men acquired mana from being strong warriors. Women could also
derive mana from taking part in battles, as the participation of Te Ruakuru at the battle of
Oneroa in Ahipara, illustrates. There is no evidence to suggest that Te Ruakuru's
example is a single instance. There is also evidence that men and women combined to
garden and fish, irrespective of status. Whakapapa lineage is the main determiner of
inherent mana, and physical ability its main enhancer.
Mana determined ranking within the group hierarchy. Group formation was flexible and
changed as fortunes waxed and waned and people died, married, were born, and moved
about following their extensive whakapapa connections. In theory, the group can be seen
as an alliance of individual mana, or an amalgam of the mana essential to maintain group
313
Supra note 230.
188
security, survival and welfare at a given time. In practice, mana was evidenced by the
individual talents and skills exhibited by its members in activities associated with foodgathering, travel, warfare and looking after one’s kin. In this sense, a group’s mana was
the sum total of its individuals’ achievements at any given time, as exercised in
accordance with the principles of whakapapa and whanaungatanga.
189
(c)
(i)
Mana Tupuna
Introduction
Mana Tupuna had a dual aspect. First, it emphasised whakapapa descent from specific
ancestors. Within Ngapuhi, everyone can trace descent from Rahiri, and is entitled to
share his personal mana as a great leader. Shared identity provided a common basis from
which other matters requiring group cohesion, such as pakanga, could also be approached
in a unified fashion. Second, as a principle of land tenure, mana tupuna was a recognised
source of localised property entitlements. The Papatupu Hearings involved claims to land
within specific Blocks, where ancestral entitlements and authority were still recognised
according to tikanga Maori. In order to be successful in claiming an interest in the land,
claimants had to provide evidence of an ancestral claim to a known piece of land, which
was still in existence, and to which no better claim existed from another.
(ii)
Hokianga Hearings
In the Hokianga Hearings, Heremia Te Wake challenged the claims put forward by Te
Hira Mataika to having ancestral links to land at Whakarapa and Waihou: 314
Ko te keehi a Te Hira Mataika i raro i aana tupuna i whakatu nei mo Otupahero, me Te Papa, e
whakahe ana au. Ko Uenuku ma, kei Whangape nga wahi e tika ana ratou. Ko Ngono ma, kei
Matangawhi nga wahi e tika ana ratou. Ko Tangaroa Tupo, e tika ana ki te wahapu o Hokianga, i
te wa i a ia. Kaore i tika ki te whenua nei. Ko Tupoto, ko Miruiti, kaore i tika ki tenei whenua, kei
tera taha o Hokianga, ahu atu ki roto nga wahi e tika ana raua. I noho ano ia a Tupoto ki
Matawera, engari kua pua ke tana wahi, ehara ia i te noho tuturu. Kaore rawa i whai take a Tupoto
ki tenei whenua.
English Translation
314
H Te Wake in Karanga Hokianga, supra note 172 at 25.
190
Te Hira Mataika’s claims to Otupahero and Te Papa under several tupuna are not tika – Uenuku
belongs at Whangape, Ngono and others should be at Matangawhi where their tika are. Tangaroa
Tupo had tika at the mouth of the Hokianga during his time but none to this whenua. Tupoto and
Miruiti have no tika to this whenua, on the other side of the Hokianga and inland is their tika.
Tupoto stayed at Matawera but he was not a tuturu [permanent] resident. Tupoto had no tika to
this whenua.
The term “tika” means in accordance with tikanga Maori, or the Maori custom law
principle of mana tupuna. For a claim to be “tika” would require the ancestral connection
to be established in a prior generation and carried on by the descendants of the original
ancestor, without there being a stronger, competing claim. In this korero, the ancestors
set up are not challenged as being incorrect, they are challenged because they do not link
to the Block under claim.
The Papatupu Committee rejected the claim of Te Hira Mataika, stating that they were
well aware that his causes were not “tika” because the ancestors claimed under, Uenuku,
Kumara and Ngono, had all fled on to the Block from somewhere else. On their arrival
they had lived under the authority of their son-in-law, Kahi, who was a descendant of Te
Reinga.315 Therefore, the descendants of Kahi had a stronger ancestral claim, based on
long term, permanent authority being exercised on the land. Although Te Hira Mataika
could still ask to be included because his ancestors had occupied the land, he could not
claim the land “as of right” because the authority on the land was neither his, nor his
ancestors’.
(iii)
Waireia Native Land Court Hearings 1913
In the Waireia Hearing, Herewini Te Toko is acknowledged by the Court as the main
claimant for the areas of Te Peke and Pupuwai. His claim for Te Peke relies on two
female ancestors, Ihengaiti who is 5 generations past, and Moetonga, 13 generations past,
whom Herewini sets up as the original root of title. His ancestors for Pupuwai are both
male. They are Ngono who is 4 generations past, and Tangaroa Tupo who is 13
315
Decision of Papatupu Committee, ibid at137.
191
generations past and who is the original root of title. In his evidence, Herewini gives his
age as being over 70 years old.316 This would place Ngono’s lifetime as being in the
1700s and Moetonga and Tupo as being in the 1500s or 1600s. 317
Pupuwai is the only land over which Ngono had rights. I do not know of any other land. Pupuwai
did not form part of Moetonga’s estate. The whole of the land extending from the Wairoa Block
to the Coast, belonged to Tangaroa Tupo. Te Peke belonged to Moetonga.
It was in the time of Tarutaru, Ihengaiti and Ngono, that these lands were divided, that is, the
Block before the Court.
I deny the statement made, that Maruwhenua gave Pupuwai to Ngono. Each of these ancestors
and their respective descendants after them occupied the several places of land, down to the
present day.
Herewini identified three territorial divisions as having been made in the territory under
claim. The first division was made by Tangaroa Tupo and Moetonga and is very early in
the genealogical time frame. The modern ancestors, Tarutaru, Ihengaiti and Ngono, also
established new boundaries. These had held for the past four generations. Later Herewini
says that the boundary line dividing Te Peke and Waireia has been altered by him and
Hare Papahia, as the main descendants for that area.318
Herewini identifies Tarutaru as the modern ancestor for Waireia, and Pakurakura and his
mother Ruapounamu as the modern ancestors for Waihou.319 Ihengaiti, Ngono and
Tarutaru are contemporaries, which places them as living in the 1700s. He also says that
Re Te Tai’s party and Rawiri Pukeroa’s party should be confined to Waihou, because
their ancestors, Maruwhenua, Tarutaru and Ruapounamu had no entitlements to
Pupuwai,320 based on ancestral connection or occupation.
316
H Te Toko, Waireia Hearings, 105.
Ibid at102.
318
Ibid at 105.
319
Ibid.
320
Ibid.
317
192
Herewini’s evidence is accepted by the Court as “tika”. His evidence shows that the
mana rangatira of Re Te Tai, acknowledged as being the main claimant for the adjoining
blocks of Waihou and Whakarapa, did not extend into the Waireia area, where he is one
of the minor claimants. The inference from the size of the Blocks claimed and the
localised nature of claims, is that whanau groups occupying the land were not very large
and that there was a lot of movement between the various groups on the west coast.
Later on Herewini Te Toko says that Waireia, Te Peke, Wairoa and Matihetihe, formerly
belonged to Moetonga. Tangaroa Tupo and Moetonga fixed the boundary between them.
The boundary had since been altered at several places, which he names.321 He says the
boundary line between Te Peke and Wairoa is an ancestral one laid down by Ihengaiti
and an ancestor for Wairoa Block.322 He identifies the Blocks under Tangaroa Tupo as
being Ngatuakaa and Kahakaharoa.323
The detail in the evidence provided by Herewini Te Toko shows that he is intimately
acquainted with the area to which he is making claim. The Court said there was
“overwhelming evidence that the tupuna set up by Herewini Te Toko were correct”, and
confirmed the ancestor for Te Peke as being Ihengaiti and for Pupuwai as being Ngono.
The Court also agreed that it was clear that Ngono’s rights for Pupuwai were derived
from Tangaroa Tupo and not from Moetonga.324
Ngakuru Pene had also set up a claim to Waireia under the ancestors, Ngarowiwi, Papa,
Te Paenga and Koangi325 and the later ancestors of Maraewhiti and Taoi who were
descendants of Moetonga,326 and whom he claimed had established rahui on the land.327
321
Ibid at 106.
Ibid.
323
Ibid at 105.
324
Ibid at 107.
325
N Pene, Waireia Hearing, ibid at 157.
326
Ibid.
327
Ibid at161.
322
193
Te Peke and Waireia were at one time, one block, but divided afterwards, by the descendants of
Moetonga. That is why I set up different ancestors for each. Pupuwai is part of Waireia. Huna
married Tangiawa, a descendant of Moetonga. Tangiawa is a daughter of Ihengaiti.328
The Court restricted his entitlements to the adjoining, Wairoa Block. Although his
parents had lived on Waireia, they had done so under the authority of Rikihana, while his
grandfather, Te Rua, had lived in the area under the mana of Whakarongouru.329
Furthermore, because other claimants who descended from Ngarowiwi, Papa, Paenga and
Koangi had chosen Ihengaiti as the proper ancestor for Te Peke, and placed their claim
under that of Herewini Te Toko, the Court felt unable to recognise Pene’s individual
claim.330
Herewini and Atama’s claims have been recognised by both claimants, thus evidencing sufficient
testimony of the strength of their case, and, it is a significant fact, that not one claimant, or counter
claimant, has admitted the rights of Ngarowiwi to a share of Te Peke, or any other part of the
block before the Court.
As to the other ancestors set up for Waireia, namely, Maraewhiti and Taoi, we are of the opinion
that in their day, they had undoubted rights, but with the exception of the descendants of
Maraewhiti’s daughter, Tangiata, those rights have become extinct.
The Court dismissed Pene’s individual claim based on the ancestors Maraewhiti and
Taio, 331 because it had become mataotao (cold), the descendants having permanently left
the land. His parents’ entitlements were weaker than that of other claimants to the area
and he was therefore, subsumed under Herewini Te Toko’s claim. The Court was of the
view that Pene’s ancestral claims under Maraewhiti and Taio would be stronger to the
adjoining block of Wairoa.
328
Ibid at 162.
Decision of the Court, ibid at 167.
330
Ibid. Pene was, nevertheless, considered to be a learned man within Te Rarawa, and the knowledge collated in
the manuscript “Nga Pakanga” is accepted as reliable information by other members of the group.
331
Re Te Tai had also raised this ancestral connection in the Waihou/Whakarapa Hearings, but had chosen Ihengaiti
as a more modern ancestor for the Waireia Hearings instead. See evidence of Re Te Tai in Karanga Hokianga, supra
note 172 at 87.
329
194
(iv)
East Coast Papatupu and Native Land Court Hearings
Widespread raupatu on the east coast, meant that there was a lot of dispute as to the
correct founding ancestors for particular areas. Groups of Ngapuhi from the central Tai
Tokerau region had overrun the coastal groups and re-populated large sections of the east
coast. In the Hearings, descendants of the original inhabitants asserted their ancestors as
being the source of good entitlement to lands based on mana tupuna, while descendants
of the raupatu rangatira claimed that the mana of the prior ancestral line had been reduced
in status from mana rangatira to pononga. In Rawhiti, this was further complicated by Te
Kemara marrying Te Puaatea, a Ngare Raumati woman, moving to Moturoa Island at
Rawhiti to live and have children with her, before moving back to his former people on
the mainland.332
In the Mangonui, Te Tii, Waimahe Papatupu Hearings,333 the Committee was faced with
claims of successive raupatu having taken place. The reports are confused and piecemeal
in their recording of facts, with some of the original occupants having remained on the
land. The Papatupu Committee resolved competing claims by the practical expedient of
awarding both parties shares in the land. In this way the existing and ongoing
relationships between the people on the land were protected for the future.
The Okuratupe/Waimate334 Papatupu Hearings are very clear that Auha and Whakaaria
are the ancestral source of title, by virtue of a raupatu against Ngati Miru and Wahineiti
who were the prior occupants of the Waitangi area. Auha is the grandfather of Hongi
Hika who lived in the early 1800s. This dates the raupatu as being somewhere in the
1700s. The people had been successfully driven from the land and the mana of the
descendants of Auha and Whakaaria were firmly established as the new occupants of the
area. From this cause a new root of title based on mana tupuna had emerged and
consolidated itself on the land.
332
TW Hakuene, Opito Hearing, supra note 186 at 136.
Te Tii, Mangonui, Waimahe Hearings, supra note 181.
334
Okuratope/Waimate Hearings, supra note 255.
333
195
(v)
Conclusion
Ancestral lineage could be claimed from either an older root of title, as in the Whakarapa
and Waihou Hearings, or more modern ancestors who had divided the land in later
generations, as in the Waireia Hearings. However, there had to be a proper root of
ancestral title from which a good claim could be made. Occupation on its own was not
sufficient, unless a tuku had been made by the incumbent rangatira.
On the east coast, confusion arises as to which of two competing roots of entitlement is to
prevail in situations where a raupatu has occurred but the prior occupants had not been
completely driven from the land or subdued. Given the process of change that was taking
place, the Papatupu Committees and the Native Land Court both resolved the issue by
looking at occupation as proving prima facie entitlement, and then take tupuna as
determining the correct allocation of shares amongst the applicants. This process was
facilitated by encouraging claimants to hold hui to decide the proper allocation of shares
amongst themselves before a hearing. Any arrangements made could then be supervised
and implemented by the Committee/Court.
196
(d)
Mana Whenua – Mana and Territory
(i)
Introduction
There is no mention of “mana whenua” as a single principle of Maori land tenure in the
Papatupu Hearings for the west or east coast areas. The terms “te mana o te moana” (the
mana of the sea)335 and “te mana o te whenua katoa” (the mana of the entire land)336, “te
mana o Ngati Korokoro” (the mana of the group known as Ngati Korokoro)337 and “te
mana o Te Tai raua ko Te Hira” (the mana of Te Tai and Te Hira)338 are used to associate
mana with both people and resources. The relationship of authority linking people and
resources is generally described as “mana rangatira” to denote the active authority
operating within the territory, and “mana tupuna” to denote the ancestral source of that
authority.
As a principle of Maori custom law, “mana whenua” is a useful modern innovation
because it combines the notions of the land having its own mauri and mana with the
political power associated with group territoriality. In this way the concepts of mana
atua, mana wairua and mana tangata are merged with that of “whenua” as an active, life
generating source.
In this part of my study I will set out what appears to have been the accepted means of
acquiring and maintaining land entitlements within Tai Tokerau. This will cover the
activities of Huaina Whenua (naming), Tuku Whenua (granting land to others) and
Raupatu Whenua. I will also look at the evidence provided by kaumatua as to how group
territories were maintained by rangatira setting boundaries between groups, and
maintained by Ringa Kaha (strong arm).
335
336
337
338
H Te Wake in Karanga Hokianga, supra note 172 at 9.
Ibid at 24.
Ibid at 19.
R Te Tai, ibid at 60.
197
(ii)
Huaina Whenua – Naming the Land
The acquisition of territory over which no prior claim existed was publicly notified
through the process of naming various places on the land, and then subduing the land by
overlaying it with one’s personal mana, by either establishing gardens, or regularising the
use of its resources. Authority derived from the personal status and mana of the original
claimant being recognised and continued by his or her descendants. There is no
information which points to pononga (servants) being able to acquire unoccupied territory
on their own behalf, although they often accompanied others who did so. But those with
strong senior whakapapa lines from within an established group could acquire territorial
rights in this way.
Re Te Tai relates339 how the neice of Rahiri, Kohinemateroa, walked over the land at
Waihou and Whakarapa, naming various places. Before this, according to Re, the land
was unoccupied. It is unlikely that no-one had ever crossed the land before, so lack of
occupation probably relates to two things: first, that no other group had previously laid
claim to the area, and second, that acts signifying the taking of possession of unoccupied
territorial possession were performed by Kohinemataroa. Re recounts an initial journey
made on her own and then a subsequent journey accompanied by her son, Rongomai.
The recitation sets out in detail the places where Kohinemateroa stopped and the
activities she engaged in at each place. The areas included Waireia, Waihou, Oruaanui
and Patiki. The combined actions of walking the land, interacting with it and naming
places, established her mana on the land. This mana was reinforced when she returned
with her people to work the land, growing extensive kumara gardens at Waihou and
Whakarapa. Her mana rangatira passed to her son, and her mana tupuna to all her
descendants.
Kohinemateroa was a member of Ngati Rahiri who lived at Te Kakaho on the south side
of the Hokianga river. Waihou, Whakarapa, Motuti, and Whangapatiki were all hers
according to Re Te Tai. While she was working at these places she lived at Waihou and
339
Ibid at 67-69.
198
Whakarapa. She did not live permanently on the land in North Hokianga but only came
to garden and then returned to Kakaho in South Hokianga. Her children also grew up at
Te Kakaho. Her mana on the land passed to her descendants and they took over her work
when she died.
Ngati Rongomai and Ngati Maui340 worked the land after she died. No other group
challenged their presence in the area or their work there. When Kohinemataroa’s
grandson, Matauturangi, married the daughter of Maui, members of Ngati Maui came on
to the land as well. Kotete and Matauturangi later moved permanently to the Waihou and
Whakarapa side of the Hokianga, consolidating their claim with permanent occupation
and extending their territory to Motuti and Whangapatiki.
Another story which details walking over territory and naming various places as the basis
of territorial authority is that of the rangatira Tohe traversing Te Wharo One Roa A Tohe,
(Ninety Mile Beach) which was related by kaumatua in the Muriwhenua Ninety Mile
Beach claim before the Waitangi Tribunal in 1992.341 Tohe was accompanied by his
pononga, Ariki. As they walked along the beach, he named various places, some of
which are still current today. That process of naming was the basis of the modern claim
of Te Aupouri and Te Rarawa to "ownership" of the beach in terms of their still holding
the mana of the region in 1957. The claim was successful in the Maori Land Court but
was lost on a point of law in the High Court.342 The Court of Appeal upheld the decision
of the High Court. The legal impediments preventing Maori having their customary title
recognised under New Zealand law were effectively over-ruled by the Court of Appeal in
the 2003 case of Ngati-Apa v AG.343
340
Ibid at 67.
Oral evidence of Ross Gregory, Muriwhenua Hearing, February 1992. Brief reference is also made to this
journey by Urlich-Cloher, supra note 170 at 24.
342
Wharo One Roa A Tohe (90 Mile Beach) Investigation of Title, 15/11/57. NMB 1957, 126-128, Chief Judge
Morison.
343
Ngati Apa v AG [2003] 3 NZLR 643. This avenue opened by this case was narrowed considerably by the
Foreshore and Seabed Act 2004, whose draconian provisions prevent all but minimal Maori entitlements to the
foreshore being recognised under New Zealand law.
341
199
Both stories indicate that physical contact with unclaimed territory by walking over it,
interacting with the different places and naming were accepted ways of establishing one’s
mana over particular territory. The rationale behind these practices was that, everything
possessed a degree of mana. When human mana came into contact with that of the land
the result was never neutral. The outcome depended on the degree of mana held by the
human. Rangatira had immense mana, drawn partly from whakapapa and reinforced by
that which their followers attributed to them. The meeting of mana with mana produced
a spiritual connection which formed the basis of a potential Maori property relationship.
The idea of what takes place is closer to layering than to a merging of the two distinct
forms of mana. Human mana was superimposed over the mana of the land and
reinforced with every interaction. Once contact had been established, the authority to
which it gave rise remained on the land and was passed from generation to generation by
whakapapa. In the process of subduing the land, naming served as notification to others
that possession had been established.
A claim based on mana could be further reinforced by an accompanying claim based on
the Tapu attaching to rangatira. Once the tapu of a rangatira had been linked to resources
through naming, those resources became infused with his or her tapu. When rangatira
died and their bones were permanently placed within the earth this consolidated the
claim. In this way the concepts of tapu and mana were used as jural principles for the
establishment of territorial rights amongst Maori.
(iii)
Tuku Whenua – Granting of land entitlements to others
The principle of tuku whenua recognised the authority of those who exercised mana
rangatira to grant land entitlements to individuals within the group’s territory, or, to
another rangatira when the group left its territory.
200
a.
Temporary tuku when leaving territory
Sometimes rangatira made tuku of their entire territory to another rangatira on leaving the
area. When Poroa left Hokianga to travel north to Ahipara to seek battle with Te
Aupouri, he took all his people with him. Rangatira from other groups, including
Ngapuhi and Ngati Manawa also went to support his cause. According to Heremia Te
Wake, on leaving the land Te Rarawa made a tuku to Te Tihi, Mauwhena, and the
rangatira of Ngapuhi who remained behind. Te Wake is uncertain which of the departing
Te Rarawa rangatira made the tuku.344 Re Te Tai says that when Moetara of Ngati
Korokoro heard that Poroa and others were going north he crossed over to Waihou and
tried to stop Kahi and his people from leaving. According to Re, before setting out,
Papahia, a Te Rarawa rangatira, said to Moetara: 345
Hei konei, e kara, hei Hokianga. Ki te ngaro ake au i tenei haere ka haere nei, tikina mai to
kainga, nohoia. Ki te puta taku ihu ki te ao, ka hoki mai au ki rungi i te whenua nei.
English Translation
Remain here, old man, at Hokianga. If I have gone too long on this journey of mine, bring your
home and stay. If my nose emerges to the world, I will return to this whenua.
This can be viewed either as a temporary surrender of Papahia’s authority until the time
of his return, or a permanent gifting conditional on his death. He did not die and
members of the iwi later returned and were welcomed back by Moetara who removed his
people from the areas that they reclaimed.
In other evidence it is stated that Ngati Korokoro filled the land after Poroa took his
people to Ahipara, and when he later sent word to Te Tihi to leave, Te Tihi refused.346
According to Heremia Te Wake, different related groups all lived together in harmony at
344
H Te Wake in Karanga Hokianga, supra note 172 at10.
R Te Tai, ibid at 77.
346
Ibid at 78.
345
201
Mataraua Pa, but when the land was left vacant, new immigrants from Ngati Korokoro
spread out and took over the area.347 It is unclear what the time period was but it would
have been in the late 1700s or early 1800s, because Hongi Hika, (1772-1828) later killed
Te Tihi in battle at Mataraua pa. Either way, several of the rangatira state that at the time,
members affiliated to a number of different groups lived together without dispute within
the Hokianga region, sharing resources.
Wiremu Rikihana details the return of the warriors to lands they had previously occupied
after Poroa’s successful campaign in the north. According to Rikihana, when
Whakarongouru of Ngati Manawa, returned to Orongotea, it was densely populated with
Ngati Korokoro. When it was discovered that he was living on the land, Moetara sent for
him to cross to Pakanae on the south side of the harbour. After an exchange of greetings
he was welcomed with the words: “Friend, you are returning to your own soil and to
your own land. Those in present occupation must leave it”.348 After that
Whakarongouru’s Ngati Manawa people returned to their former homes.
This evidence points to Moetara having established temporary, conditional authority on
the land, in the absence of the other rangatira, which he partially withdrew when they
returned. As a permanent tuku of authority over land and territory, as for example when
new territory was acquired by Te Rarawa to the beach area once held by Te Aupouri, it
was defective in that there appear to have been no boundaries laid out to demarcate the
area within which new authority was to operate, as was the customary practice.
Furthermore although Ngati Korokoro moved on to the land, the conditional nature also
caused problems in that those who returned expected to resume their former positions and
authority on the land and expected those who had recently taken possession to withdraw.
Whatever strength it possessed as a tuku, was completely nullified when Moetara later
shifted all his people from the north to the south side of the Hokianga, following lengthy
disputes over resources. At the time of his withdrawal, Moetara crossed to Waihou and
met with the rangatira from north Hokianga. At this time he laid down the customary
347
348
H Te Wake, ibid at 4.
W Rikihana, Waireia Hearings, supra note 175 at 36.
202
boundary, so that Ngati Manawa and Te Rarawa had the authority on the northern side
and Ngati Korokoro the southern side of the Hokianga.349
I te wa i a Whakarongouru ma e noho huihui ana i Kawehitiki, ka whakawhiti ka mea a Moetara;
“E Tamara ma, hei konei kua mau te rongo. Kei a koutou te tikanga o tenei taha. Kei au te
tikanga o tera taha.” Ko te tino whakamutunga rawatanga tenei o ena iwi ki tenei whenua, a Te
Pouka, a Ngati Korokoro, a, tae noa ki nga uri, i runga i te kupu a Moetara. Ka hoki mai, ka
waatea Te Tuauru, kua kore hoki te mana o Ngati Korokoro.
English Translation
At the time Whakarongouru and others were all living together at Kawehitiki, Moetara crossed
over with Ngati Manawa and said: “Men, from this peace has been made. You control the tikanga
of this side. I will have the tikanga of that side”. This was the real absolute ending of that iwi to
this whenua, of Te Pouka, Ngati Korokoro right down to the uri, on the word of Moetara. He
returned (to the south side), Te Tuauru had been cleared of the mana of Ngati Korokoro that was
no more.
The use of Moetara’s authority to remove any claim by his people to the area, and his
ability to declare the boundaries between the groups, permanently settled the disputes
between the two sides. Those of his people who chose to remain on the north side came
under the mana of the rangatira on that side. In Land Court Hearings in the late 1800s
and early 1900s, attempts to undermine the mana rangatira of Re Te Tai by claiming
entitlements under Moetara, were exposed by his son, Hapakuku Moetara, who stated that
he was not entitled to those lands because the words of his tupuna were binding.350 The
boundaries set by Moetara, remain in place today as the ongoing symbol of his enduring
mana rangatira and ability to bind his people with his word.
349
350
H Te Wake in Karanga Hokianga, supra note 172 at 18-19; R Te Tai, ibid at 96.
R Te Tai, ibid at 120.
203
b.
Tuku Whenua Within Settled Territorial Boundaries
i.
Granting of “Tuku” Title351
The principle of “tuku whenua” (gifting the land), was employed by those who possessed
mana rangatira as a means of granting entitlements of land to others. A tuku generally
followed a request from the grantee to the person with mana rangatira, or could be
instigated by the person with mana rangatira in performance of his or her duty to atawhai
others, when for example, disputes between family members made living together,
difficult.
As a direct descendent of Rahiri and Te Reinga, Ngakahuwhero drew her authority on the
land from senior whakapapa lineage combined with her status as an elder. During her
lifetime Ngakahuwhero made several tuku to individuals who wanted land to make
gardens, build houses, or work on the trees in the area. She made a tuku of the trees at
Kaitara to Taku when he asked,352 and to Riha when she asked.353 These tuku were made
with the agreement of both her sons. She also instructed them to "hokoa” (barter) the
land at Whanganamu, in order to buy tobacco for her pipe.354 It is not clear whether the
sons’ agreement was a prerequisite to the exercise of her power of tuku and hoko
whenua.
Attempts were sometimes made to flout Ngakahuwhero’s authority. When she refused to
tuku land at Kaitara to Wirepa he tried to enter into trade with the Bishop for the land
351
The term “title” is used in the English legal sense of a recognised claim to land that is upheld by the community,
the breach of which could attract a penalty.
352
K Puhirere in Karanga Hokianga, supra note 172 at 62.
353
R Te Tai, ibid at 98.
354
Ibid. This use of “hokoa” probably refers to the granting of cutting rights or trading in cut timber rather than to a
sale of land, particularly as the next sentence reads “I tukua ki konei, i a tatou e noho nei” (it was released to here,
where we reside”, and there is no indication of the transaction being out of the ordinary. The use of “hoko” as
meaning entering into trade or barter as opposed to Pakeha notions of “sale” is discussed by Mutu, supra note 22, in
“Cultural Misunderstanding or Deliberate Mistranslation?” a paper which draws on her evidence to the Waitangi
Tribunal in the Muriwhenua Claim in 1992.
204
without her authority. Te Tai and Te Hira, thwarted the transaction.355 In the pre-contact
period this type of bartering would not have been available to members of the group.
Although the principle of whanaungatanga acted as a guideline for exercising tuku, there
was an autocratic aspect to it. No ritual was required to formalise tuku, the word of the
rangatira was sufficient, and once spoken, was upheld within the group. However, the
ability to permanently alienate land outside one’s group, without the approval of the other
members, was a new circumstance that had not previously been faced by those exercising
mana rangatira. Once tuku of land were backed by legal sanctions, rangatira tuku to
Pakeha could be construed as absolute sales, which permanently dispossessed the people
and significantly reduced the group’s estate in land.
The Papatupu information shows that the same land was sometimes the subject of
successive tuku. Ngakahuwhero made a tuku of one side of Papakuwhenua to Pouhoko,
and the other side to Tiapakeke. A further tuku was made to Pou, and when he died, that
land was granted by tuku, to Tiapakeke. Te Ihi was the current resident.356 This indicates
that tuku was personal to the grantee for the duration of his or her life and then returned
to the group territory for reallocation. There are instances of the children continuing to
live on the land after the death of their parent, as in the case of Tiapakeke. However, in
his ohaki he asks Re Te Tai to be generous to his children, and implores his son, Heremia
Te Wake, to respect the mana of Re Te Tai because if he does not and Re speaks, “then
that’s that”. This, again indicates that the grant was personal to the grantee and could be
withdrawn once the recipient had died. Later on when Hotene is pushed off the land by
Pere Te Tai, following an argument with Heremia Te Wake, Hotene approaches Re Te
Tai for land and is granted the land that was occupied by Te Hira before his death.357
The responsibility of mana rangatira to atawhai others, was also apparent in the way
Ngakahuwhero dealt with her relations. When Taku asked for permission “to work the
355
Ibid at 100.
Ibid at 106.
357
Ibid at 115.
356
205
trees” at Kaitara, Ngakahuwhero agreed and told him that once he had finished with the
trees he could have the land. On that authority, Taku brought his people from Te
Whanauwhero and Te Hikutu to work the trees and then cultivated food on land once
held by Whatia as gardens. No one objected.358
Likewise, when Tiapakeke fought with Pireke, whom he accused of committing adultery
with his wife, and ordered him from the land, Te Tai, relocated Pireke and his family on
to another area of land at Motuti.359
Generally those with mana rangatira consulted other members of the group whom they
felt would be affected by their decisions, before making tuku of areas of land. The
opportunities to do this were often provided at hui (gatherings) held for other reasons,
including tangi and marriages, where land matters were always discussed. However, this
was not always the case, and throughout the Papatupu Hearings the term “no one
objected” frequently appears after a tuku has been made. This seems to indicate that an
onus lay on those who would be detrimentally affected, to raise objections with the
person who exercised mana rangatira. If they did not, then the tuku was accepted
according to its terms by other members of the group.
ii.
Tuku made to Individuals for Whanau and for the Community
Tuku could be made either to named individuals for use by their immediate extended
whanau, or set aside for use by the community as a whole. The purpose was made known
at the time the tuku was made. Tuku to the community enabled several whanau living
within the area to share a resource and was in accordance with the principles of aroha and
atawhai ki te tangata. However, the work still remained under the guidance of senior
members of the whanau. Despite the absence of the term "tuku", in evidence for the
358
359
Ibid at 98.
Ibid at 91-92.
206
Waireia Block Hearing which was heard in English, Wiremu Rikihana spoke of two
cultivations being used in common, while others were “owned” by individuals:360
Ngakopa and Taipari were two cultivations used in common by these people. They also cultivated
part of Poroua Kekeno, Puketapu, one part of which is a pa on a hill.
Te Rangituhituhi is a cultivation owned by Wiremu Tana. Haowahine also belonged to Wiremu
Tana, so also did Rakau Taurirua.
Hauhauparaoa was owned in common by Rikihana, Ngawaka and Tana. Waipa also belonged to
Wiremu Tana.
The people mentioned are senior members of the families that were named in the
Whakarapa and Waihou papatupu hearings as exercising mana within the area. When the
various tuku had been made, and by whom, is not set out by Rikihana. They could be old
tuku dating from the time of Moetonga, or modern tuku, 5 generations old, as Tarutaru
and Ihengaiti are modern tupuna set up as operating mana rangatira within the area. The
entitlements are inherited ones, having been passed down through several generations.
A similar distinction is made by Re Te Tai in the earlier Papatupu hearing for the
Waihou/Whakarapa area. After laying out the ancestral boundaries set by Te Reinga he
says:361
Ko tena whenua na Te Reinga i tuku tuturu mo nga uri o Rakeiti, o Taimihitata. Ka waiho a
Whakarapa hei whenua kai huihui ma nga uri o Te Reinga, o Taimihitata, o Rakeiti. Ko tera taha
o te awa o Whakarapa i a Te Pekatahi ma, ara, i nga uri o Te Kuri. Mai i reira, tae noa mai ki oku
matua, ko te korero tena.
English Translation
Te Reinga permanently granted that whenua for the uri of Rakeiti, of Taimihitata. Whakarapa was
left as a communal whenua for food for the descendants of Te Reinga, of Taimihitata, of Rakeiti.
360
361
W Rikihana, Waireia Hearings, supra note 175 at 38.
R Te Tai in Karanga Hokianga, supra note 172 at 90.
207
The other side of the river of Whakarapa, Te Pekatahi and others had, that is, the uri of Te Kuri.
From that time down to my matua, that was the talk.
The portion of land set aside, permanently, as a communal resource for the descendants
of Te Reinga and his sisters’ descendents was still in existence at the time of Re Te Tai.
Thus, it had held for 10 generations.
c.
Tuku – Personal to the Grantee and their Uri
Tuku were generally personal to the grantee for their lifetime or until they moved away,
after which time the land reverted to the territory presided over by the rangatira and could
be re-allocated.
Wiremu Paiha, giving evidence in the Waireia Hearings, says that the rangatira, Te Toko,
made tuku of land solely to Paiha’s grandmother. An adjoining piece called Ngamahanga
was given by Te Toko to Hera Waiti, who died without children. The land was now in
the hands of Piripi, the grandson of Te Toko.362 Paiha was not a member of the senior
line to this land.
Although personal, tuku were often long term in that they were made with the
understanding that members of his or her whanau could continue on the land after the
grantee died, unless told to leave.
Rangatira and their whanau also had their own, exclusive, land entitlements on which
their whanau lived. In the Waireia Hearing, Herewini Te Toko stated that his modern
ancestor for Te Peke was Ihengaiti, who had derived her entitlements through her mother,
Te Wehenga. Ihengaiti had rat snares at Porokowhai, near the stream and at Paipaimai.
According to Herewini the rats snares belonged exclusively to Ihengaiti, and also to her
children but were no longer in use. She also had cultivations, which passed to Tangiawa,
362
W Paiha, Waireia Hearings, supra note 175 at 113.
208
Te Hoe, Te Pua, Koukou, and then down to Koangi and Kiriwehi, the children of Te Hoe,
and then down to Herewini and his tuakana.363
Through another ancestor, Ngono, Herewini had inherited other cultivations:364
Work at Meakapekape, Kumengatau and Karemoa came down to me, but I have not used them for
a long time. Te Ahipikari ended in my father’s time. Rotokahu is sown in grass by Rikihana’s
son. It has not been used as a cultivation since Rikihana left it in 1877. Mataewerohia is a
cultivation used by Heta Rawiri at the present. Harakeke Whakakopa near my kainga, belongs to
me. Matangawhi is used by myself and others. I cut up the land at this place into allotments.
Herewini’s father, Te Toko, was the person whom the other claimants and the Court
accepted as possessing mana rangatira on the land. Herewini had inherited this status.
However, his personal entitlements on the land were specifically set out in the same way
as that of other occupants, indicating that his mana rangatira role of administering the
tikanga on the land, was separate from his own holdings on the land. This supports the
idea that mana rangatira, although exercised by an individual, was a territorial power
belonging to the group.
Communal holdings were also considered as being separate from individual, whanau
holdings. Group ownership of marine resources was held in the same way as communal
land resources. In the Waireia Hearings, Heremia Te Wake states:365
What was regarded as the greatest importance in the old days were the fisheries. The fishery at
Pohaturoa, at Te Karaka Point belonged to Ngati Manawa. The water at this place is deep. It was
owing to the fact that Hinerangi, the ancestress of Ngati Manawa, was born at Te Karaka, that
gave her descendants the right to possess this fishery.
Rangihimamao was killed at Pohaturoa when fishing. When I was a child I saw the posts used for
the nets. The fish caught from this place were strung up at Te Karaka to dry. This work at Te
363
H Te Toko, ibid at 98.
Ibid at 102.
365
H Te Wake, ibid at 67.
364
209
Karaka lasted from the time of Hinerangi, until the present day, and therefore, constitutes part of
our occupation to Waireia.
Thus the claim is that the fishery was a resource to which all the descendants of
Hinerangi were entitled by virtue of mana tupuna. Those descendants were members of
the group known as Ngati Manawa. According to Heremia Te Wake, this was a
territorial resource held by the hapu. However, Re Te Tai says in his evidence, that
Taaoi and Maraewhiti had placed a rahui over the resources, and that when Hinerangi’s
husband, Rangihimamao, who was from Ngati Whatua, went to fish at Pohaturoa, he was
killed for breaching the rahui.366
So entitlement did not mean that anyone related to the group could use the resource when
they chose. Once restrictions had been set down everyone was subject to the same
punishment unless the rangatira decreed otherwise. In this case, being an in-law acting
on the authority of a wife who was a distant relative of the rahui setters, did not produce
any special privileges for the husband. That he was from Ngati Whatua, who conducted
regular raids into the Hokianga region, would not have helped either.
d.
Duration of Tuku
Most tuku appear to have been made without a set duration being specified at the outset.
Although they were made to an individual, if his or her children remained on the land
then the term continued. In theory, these tuku could go on forever. However, in reality,
tuku lasted until the recipient no longer needed the land, someone else had a greater need,
or they were told to leave. In this case, another whanau would move on to the land and
share its resources. Where there were existing occupants, the addition of new occupants
was usually by agreement with the resident family.
The complexity of multiple tuku could result in several different whanau living in close
proximity in one area. While Ngakahuwhero was living at Otupahero she held authority
366
R Te Tai in Karanga Hokianga, supra note 172 at 86.
210
on the land. According to Re Te Tai, a tuku of land at Otupahero had been made to
Kaimanu, daughter of Ngono, by Te Tungutu, Pakurakura, Kahi and Ruapounamu,
because Kaimanu had married Kahi.367 Kahi was Ngakahuwhero’s father and
Ruapounamu was her grandmother. Herewini Te Toko, the main claimant for the
adjoining, Waireia Block, says that it was an earlier ancestor, Maruwhenua, who made a
tuku of land in Waihou, near Otupawhero, to his son-in-law, Ngono.368 The
circumstances of the tuku are not set out, but both Re and Herewini agree that a tuku took
place and that Ngono lived permanently within the area.
At some stage a battle took place, and Te Ngawha, of Ngati Te Reinga, was killed. He
was eaten and his bones hung to dry on a rock in the area. As a consequence, the land
became tapu, or off limits to human habitation. According to Re Te Tai, Ruapounamu
asked Ngono whether the land where Ngawha was killed could be given to Ngawha’s
descendants. He agreed. During the time Ngakahuwhero held authority on the land,
Takahoorea, a Ngapuhi rangatira, asked whether he could clear the tapu on the land.
Ngakahuwhero agreed. In consequence, Takahoorea came with his root crops, planted
them and then ate them. These actions cleared the tapu and made the land available to
others.369 Thereafter, the descendants of Ngono and Ngawha lived together on the land
without dispute. 210
e.
Types of Title Held
There are two types of land entitlement identified in the Papatupu and Native Land court
Hearings. They are “tuturu” entitlement and entitlement by “aroha”.
i.
Tuturu Entitlement
This was the strongest type of entitlement. It was derived from an ancestor who had
settled on the land and whose mana over land and people had been passed to successive
367
368
369
R Te Tai, ibid at 91.
H Te Toko, Waireia Hearings, supra note 175 at 101.
R Te Tai in Karanga Hokianga, supra note 172 at 91.
211
generations of the founding family who were held to possess senior lineage. Of those
who possessed tuturu entitlement, “mana rangatira” passed to selected individuals in
successive generations. These people acted as “kai whakahaere o te tikanga o te whenua”
(administrators of the tikanga operating on the land). All other descendants obtained
tuturu entitlement by whakapapa descent from the same ancestral line and living
permanently on the land. Underlying tuturu entitlement is mana tupuna, or ancestral
claim, that has remained connected to the land over several generations.
In the Waireia Hearings there was conflict amongst the claimants as to who were the
correct ancestors set up as the root of entitlement for the Block. The original ancestors
were Moetonga and Tangaroa Tupo, but claimants said that the Block had since been split
into three, and set up three different modern ancestors as the source of tuturu entitlement
for different parts of the block. The Court held that the evidence was overwhelmingly in
support of the tupuna set up by Herewini Te Toko, and confirmed the ancestors for the
area as being Ihengaiti for Te Peke, Ngono for Pupuwai and Tarutaru for Waireia.370
In the Waihou/Whakarapa Hearings the correct root of tuturu entitlement was accepted
by the Committee as being the ancestor, Te Reinga. Because Re Te Tai traced direct
descent to Te Reinga, and his ancestors had maintained occupation and strength on the
land, his claim (and those who claimed under him) was viewed as being “tuturu”.
In the Waireia area, Herewini Te Toko held the strongest entitlements to the area by
virtue of mana tupuna. Therefore his title was “tuturu”. Hori Harimana, a nephew of
Herewini Te Toko says, “We, and the children of Te Toko all worked together in
common with the mana of Te Toko, who was our head. Ihapera and Heni and Mereana,
his nieces all lived with him.” 371 They have tuturu title too. In Waihou, Re Te Tai is
identified as the holder of mana rangatira on the land, and his whanau possess tuturu
entitlements on the land.
370
371
Decision of Court, Waireia Hearings, supra note 175 at 107.
H Harimana, ibid at 117.
212
On the east coast it is harder to trace a single ancestral line. Claims of tuturu entitlement
are consistent with those made on the west coast, but are challenged by claims that Auha
and Whakaaria established an entirely new line of claim through raupatu title. However,
the 7 generations of descent from Toko, (nephew of Auha and Whakaaria), who is put
forward by Aperahama Parangi as his ancestor for Tako,372 does not seem to have
changed “raupatu entitlement” into “tuturu entitlement”.
ii.
Aroha Title
Within a group “kai whakahaere” described the administrative role of allocating the
group’s resources amongst its members, while ”mana rangatira” described the authority
possessed by the rangatira who fulfilled that role. His or her principal duty in the role of
kai whakahaere, was to look after the people and ensure that the group’s territory and
resources were kept intact. In order to achieve this the rangatira set territorial boundaries
with neighbouring groups and established “rahui” over resources, which reserved those
resources for the exclusive use of the group. Internally, those with mana rangatira were
also responsible for allocating resources to different individuals for their whanau. Even
though rangatira were often teina, or junior, in generational terms, they still had the
authority to make dispositions of land to their maatua, or elders, when necessary.
Aroha entitlement to an area of land arose when distant relatives with stronger links to
others areas moved on to the land, raupatu survivors were taken in, or when a group
moved its territory and individuals chose to remain behind. Essentially aroha title relied
on the generosity of those who held tuturu title on the land, allowing others to live
peacefully amongst them. Tuku could be made for assistance rendered by an outsider in
war, such as that claimed by Taniere Rangipaoa from Tuu to his ancestor Takarepa,373 to
merely tolerating the presence of relatives and in-laws who were visiting and then set up
residence.
372
373
A Parangi, Te Tii, Mangonui, Waimahe Hearings, supra note 181 at 51.
T Rangipaoa in Karanga Hokianga, supra note 172 at 37.
213
Aroha entitlement did not develop into tuturu entitlement over time. If passed to
descendants it was only good for as long as occupation was maintained. Marriage into
the main lineage at a later date, as with Heremia Te Wake’s claim for Waihou, did not
seem to alter the nature of the entitlement. It remained attached to the original derivation
by aroha.
Often, a rangatira would bring others on to the land as companions to help work the land.
These people would remain until the rangatira died and then either return to their home,
or continue living on the land. In the Waireia Hearings, Wiremu Rikihana recounted how
the parents of Reone Wikitera, a claimant for land at Waireia, had been brought on to the
land from Omanu by Tamaho. Tamaho was a rangatira from further north, around the
Whangape area. He stayed briefly in Waireia and when he left the land Wikitera went
with him.374
Rikihana also includes in his list of claimants, people who contributed towards the costs
of survey and investigation. He says “they are put in out of aroha”.375 These people
would be distant relatives who helped work the land .
When Te Tai was dying, he asked Re Te Tai to remember the people “that had no place”,
who he and his mother, Ngakahuwhero had brought from Whirinaki to help work the
land, and without whom Te Tai would not have been held in as high esteem as a
rangatira.376 Both Te Tai and Te Hira, in their ohaki, reminded Re Te Tai that he must
look after “the iwi mokai” or “humble people” on the land. Te Hira is quoted as
saying:377
Kia atawhai ki nga iwi, kia tika te whakahaere i te whenua. Ta te rarangatira whenua ki a ia, ta te
mokai whenua ki a ia.
English Translation
374
W Rikihana, Waireia Hearings, supra note 175 at 42.
Ibid at 48.
376
R Te Tai in Karanga Hokianga, supra note 172 at 105.
377
Ibid at 102.
375
214
Kia atawhai [Be kind] to the iwi, ensure that the whenua is administered in a proper manner. The
rangatira to his/her whenua and the iwi mokai to his/hers.
Every member of the group had a place and position on the land. The job of the person
exercising mana rangatira was to ensure that that place remained secure for as long as it
was needed.
In the Waireia Hearings, the ancestors under whom Te Hira Mataika claimed the entire
Block were Waihoenga, who although born on the land had left and died at Takahue, and
Ngono, who was a tuturu titleholder. Mataika possessed no cultivations belonging to
himself or his elders, and had little knowledge of the occupation of the people through
whom he claimed ancestral entitlement. Although he had taken part in timber cutting it
was under the control of Wi Tana Papahia, Hone Papahia, Te Tai and Tangaroa, all of
whom had placed themselves under the claim of Herewini Te Toko. The Court held
that:378
Altogether the evidences of occupation by this claimant, are very slender indeed, unless we take
into consideration his residence on that portion of Waihou, which, by admission of all parties,
originally formed a part of the old Waireia territory controlled by Moetonga.
The court awarded him shares on the basis of “aroha” which was defined as:379
a)
ancestral right but no occupation
b)
occupation but no ancestral right
The Court was also lenient with the claim of Peita Wharetohunga who lived at
Whakarapa, and who claimed under the ancestor Moetonga:380
378
Decision of Court, Waireia Hearings, supra note 175 at 56.
Ibid at 57.
380
Ibid at 65.
379
215
This person’s occupation is not very strong, and it is very doubtful if he, or any of his people has
ever occupied the land in the true sense of the word.
His claim is based on settlement and work on Te Karaka, which was formerly a part of Waireia,
but so far as his evidence goes, he has never exercised any rights of ownership over Waireia, apart
from timber felling.
He was also awarded shares in “aroha” by the Court.
The reduction of tikanga to these two claims to entitlement to land enabled the Court to
recognise the customary principles of whakapapa and whanaungatanga as it was still
operating at the time of the 1913 hearings. "Ancestral right" was premised on the
principle of mana rangatira having been retained in the whakapapa lineage that continued
to be upheld by the people on the land. "Occupation" took note of those who actually
lived on the land, irrespective of kinship links or relative position in the group hierarchy.
By including members of the senior family who had left the land, and those who were in
residence on the land, under the title of "aroha", the Court expanded the entitlements of
claimants beyond those recognised by the Papatupu committees and those who exercised
mana rangatira. This inclusive approach, while dealing with the present situation in a
seemingly equitable manner, paved the way for "outsiders" and those whose interests had
become "cold" to continue to hold interests that they would not have retained under a
system operated under the personal administration of mana rangatira.
Herewini Te Toko talked about his whanau’s occupation and the people that they had
invited onto the land:381
My brother died in 1860 and I have continued the occupation ever since. Before my brother’s
death, some of our young relatives joined us on the land, at our invitation, and they cultivated with
us. They were Rapata Paiha, Wi Paiha and Eruera Paiha. They occupied for a time and then
returned to Pupuwai and Te Ruaki. With regard to these Paiha, I wish to state that we invited them
as our relatives, and not that they had any rights of their own.
381
H Te Toko, Waireia Hearings, ibid at 98.
216
Today, the cultivations in use are in the neighbourhood of Pukawa. These cultivations belong to
Rapata Paiha and he has a house there. Another cultivation belongs to my son Piripi. Another is
owned by Heta Rawiri, and also a house, which at present belongs to me.
When Heta Rawiri wanted to build a house afterwards, it was erected. He first of all asked my
permission and I consented to a location. My relative, Ruka Te Huru, now dead, fixed the position
for the house, which was thereupon built. This is at Pukawa. The house has been erected about
six years, and Heta lived there until last year, when he left it. He also gave up the cultivation.
Although the house and lands are in my possession Heta still cultivates there, but he lives at
Mataewerohia, on Pupuwai.
These Hearings were the beginning of a process that usurped the mana once held by
rangatira and reduced rangatira to ordinary occupants on the land. The mana of the
rangatira, as espoused by Herewini Te Toko and the other claimants, once shares had
been established, would have to give way to that of the Land Court in adjudicating
“rights” on the land. Therefore, the distinction between those who held “tuturu”
entitlements and those who held “aroha” entitlements would be of no consequence once
shares had been allocated. Those living on the land remained in residence for as long as
they wished and then either sold their shares, or had their shares sold by other owners
without their consent. But they could no longer be dispossessed on the word of the
rangatira. That would have to occur via the mechanisms set up for alienation under the
Native Land Court.382
f.
Residence/Occupation as Proof of Title
Most of the claimants relied on some degree of occupation to support their claims of
entitlement to shares in the land. Many set out the cultivations of their ancestors within a
Block as proof of their ongoing occupation and residence. In the west coast Hearings,
cultivations were generally held by whanau with senior whakapapa lines. According to
Wiremu Rikihana, Wiremu Tana “owned” Rangituhituhi, Haowahine and Rakau Taurirua
382
The mechanisms by which land alienation took place after the passing of the Native Land Act in 1862 is not the
subject of this thesis and a detailed discussion will not be undertaken. The area is covered in depth by DV Williams,
in Te Kooti Tango Whenua, supra note 38.
217
and Waipa; Hauhauparaoa was “owned in common” by Rikihana, Ngawaka and Tana;
and two other cultivations were used in common. Although Ngawaka and Tamaho left
the land they did not abandon it, returning frequently to live upon it.383 He says that he
lived for a time at Rotokakahu, inside Pupuwai, near Te Mataa, and then returned to
Waireia for a time, before moving to Kaihu in 1879 where he has since lived. He never
entirely abandoned the area, however, and frequently returned to the places where he had
formerly lived. According to Rikihana, the clearing of land in order to establish a land
claim, was now a way of claiming ownership by those without a tuturu claim, who were
relying on occupation alone.384 The practice of claimants clearing land as a way of
establishing occupation before the Native Land Court, is also mentioned in the evidence
of Re Te Tai in the Waihou/Whakarapa Hearings.385
Himiona Kamira speaks about the main kainga of Te Kotuku at Te Peke and says he and
his daughters worked there. He sets out other cultivations and kainga belonging to the
same people. The old ancestral cultivations at Te Peke were worked upon by the uri,
Rewi and Atama Paparangi and others.386
Another cultivation was Karemoa, on Pupuwai. Atama, Huriana and their mother worked there.
Tarawa-ngarara was another cultivation that belonged to these persons. Matangawhi was a kainga
and cultivation. Pupuwai was another kainga belonging to them.
Hori Harimana was Herewini’s nephew. His claim was by ancestry and permanent
occupation: 387
Both Ngono and Wairoro descended from Moetonga. Punehu, where I live, is in this block. I
lived at Te Mataa. I also lived at Ngatutu alongside Te Karaka Block. I worked there. I
cultivated at Ngamehaua. I planted at Ngatutu for a long time with my elder brother, and my
mother. I also worked at Matamata and Te Peke, the latter being an important cultivation made by
383
W Rikihana, Waireia Hearings, supra note 175 at 38.
W Rikihana, ibid at 41-44.
385
R Te Tai in Karanga Hokianga, supra note 172 at 115.
386
H Kamira, Waireia Hearings, supra note 175 at 85-86.
387
H Harimana, ibid at 116.
384
218
my mother. This was in my youth. My mother worked at Hauauru, a place just within the
Hauauru Block.
By way of contrast, occupation and residence is not as strong a factor in the east coast
area claims, where the main claim of entitlement is via raupatu. Traditional cultivations
do not seem to have been as well established as on the west coast, largely because the
land had only recently been seized and the old occupants either driven off the land, or
subdued. Even in Takou, where, according to the evidence of Aperama Parangi, 10
generations had elapsed since Toko had taken control of the area, ancestral gardens were
not raised in support of the claim for the area.
g.
Challenges to “Mana Rangatira” – The Advent of New Opportunities for
Trade – Timber Cutting at Hokianga and Waireia
The west coast papatupu and Native Land Court Hearings contain a number of references
to timber cutting and timber cutting rights. The area was very heavily forested and
colonisation had brought with it new opportunities for trade. This shifted the Maori
economy from subsistence level reliance on natural resources, agriculture and sharing, to
a trade economy based on barter and money. Wikitera Ngaruhe recalls the first cutting of
trees that took place in the Hokianga:388
My parents took part in the first cutting of timber off Ngamehaua. The principals were Tamaho
and Wiremu Tana. The sale was to Captain McDonald. The second cutting was at Ngamonoa. Te
Kaitutae at the same time cut timber at Whitikia. To float the timber out, canals were cut by the
people engaged in the work.
There was no question of royalty in those days. The timber was paid for by purchasers. Mr John
Webster senior, and Mr Manning were the purchasers on the occasion I refer to. The payment was
in sugar and biscuits.
388
W Ngaruhe, Waireia Hearings, supra note 175 at 131.
219
Although the Native Land Court had accepted that the clearing of land, followed by
occupation, with the authority of the person exercising mana rangatira, could give rise to
an entitlement based on “aroha”, it would not extend this rationale to the clearing of land
by felling of trees. It held that these could not be relied on as the basis of land rights in
the same way as clearing land for occupation.389
There is no law of ancient Maori Custom respecting timber cutting of the nature carried out on this
block. This is quite a modern innovation introduced by the requirements of Europeans, and the
quantity covered, greatly depended upon the law of supply and demand.
Hence, we reject such workings as giving rights similar to those mahinga, and clearings carried out
for the express purpose of improving the land, in order to obtain the means of sustenance.
We have no doubt that very many persons, who themselves had no shadow of claim to it, took part
in the timber cutting contracts through their relationship to persons having a good right to the land.
The distinction drawn here is based on the reasons for clearing the land. The Court saw
the clearing of land for use by one's own family members, with consent by the person
who administered the mana rangatira, as being in accordance with tikanga. But
commercial exploitation of resources for purely economic returns without any other
attachment to land was not within tikanga as the Court perceived it to be. This acted as a
constraint on entitlements granted by the court under the guise of "occupation" and
"aroha" to claimants who came before it.
In the 1800s, rangatira were still attempting to extend their mana to include control over
the new activities. In many cases, rangatira controlled who had access to tree cutting, and
in most cases the income from tree cutting was passed to rangatira for dispersement to
those he considered to be entitled. According to Wiremu Rikihana, timber cutting had
been prohibitted in Waireia, although Hori Harimana had later been given permission to
cut timber by Hare Papahia, who was the kai whakahaere on the land.390
389
390
Decision of Court, ibid at 168.
W Rikihana, ibid at 48.
220
Herewini Te Toko also says that for a period of time the old authority held on the land
and was adapted to the changing circumstances of economic trade and money: 391
The children of Tupakihi cut timber on Te Peke, namely, Ngawati and Himiona. They worked
with my permission which they asked for. They cut white pine. Rewi and Atama, also Tupakihi
came to me and asked my permission to cut kauri at Te Peke. I agreed but asked them to set aside
the royalties. The timber was sold and the royalties were divided between us.
There was another cutting of kauri at Ngaha. The persons who took part in this were my son
Piripi, Rapata Paiha, Heta Rawiri and others. I received the royalties for this. Ngawati and others
cut puriri at Pukawa. They cut it on their own responsibility. I was absent from the district at the
time. They had a right to cut timber through their descent from Ihengaiti.
This shows that mana rangatira and tuturu rights were still being observed by Maori in
the mid to late1800s, even though technology had opened up new commercial avenues
for exploitation in the area.
However, concern was mounting that these new influences and opportunities were
leading those who had entered into timber cutting contracts to actively undermine the
authority of the rangatira.
In the Waihou/Whakarapa Hearings held in 1904, Re Te Tai speaks of the usurpation of
his “mana rangatira” by Heremia Te Wake and other junior lines on the land.
The attempt at bypassing rangatira authority is evident in Wirepa’s attempt to pass land to
Bishop Pompallier, in direct contravention of Ngakahuwhero’s authority. The transaction
was stalled when Te Tai and Te Hira interrupted Wirepa asking the Bishop for payment.
According to Re Te Tai, his father confronted Wirepa with the words “I pa ano koe ki
toku kainga i mea ai koe, maau e hoko?” “Do you have any connection to my home that
enables you to barter it?” In earlier times this would have given rise to an act of utu in
reciprocation for such an affront to Ngakahuwhero’s mana. Wirepa would probably have
391
H Te Toko, ibid at 99-100.
221
been banished from the land. However, according to Re, Wirepa simply laughed and no
exchange took place.392
Another example provided by Re Te Tai, concerns encroachment on to his own lands in
Whakarapa, which had been abandoned temporarily following the death of his daughter.
Although his children later returned and cleared and planted the land, one of Heremia Te
Wake’s relations, Tuku, had moved on to the land. Re Te Tai wrote to Heremia Te
Wake, Hotene, Kanara, Te Ihi, Pauro Te Rangaihi, Peita and Pakihi, and relates the
following interchange:393
He mea aku naku; “E Tamara ma, meinga atu ta koutou tamaiti kia hoki ki Whakarapa. Waiho
nga mahinga a aku tamariki.” Kaore i whakahokia mai. Muri iho ka ui au ki a Hotene; “Pehea ta
koutou whakahoki mai mo taku reta.” Ka mea mai Hotene; “E kore e whakarongo ki to reta. I
mua, ko koe te rangatira, i naianei he rangatira katoa nga tangata.” Ka rongo au ki a Hotene, i kii a
Tuku kia ahu mai ia ki konei, i au nei, mo taua whenua ra ano, a, na Heremia i mea kia kaua Tuku
e haere mai, kei kore mana ratou ki runga i te whenua nei. Ka korero au ki aku tamariki ki to raua
whakaaro. Ka mea mai a Hoori, e kore ia e pai ki te raruraru, kei te haere mai te kooti mo tenei
whenua, kei reira kitea ai te mea tika, me te mea he. Ka okioki au ki te kupu a Hoori. Hoi, i
naianei kei te aroaro o te komiti tenei whenua, a, maana e titiro te aahuatanga.
English Translation
I said, “Men, tell your son to return to Whakarapa, leave my children’s gardens”. There was no
reply. Later, I asked Hotene, “What was your reply to my letter?” and he replied, “They will not
listen to your letter. Before, you were the rangatira, but now all the people are rangatira.” I heard
from Hotene, that Tuku wanted to come here by me, for that same whenua, but it was Heremia
who said for him not to come, lest they had no mana on this whenua. I told my children of their
idea. Hoori said that he did not want to cause trouble, that a Court was being arranged for this
whenua and it will be decided then who is right and who is wrong. I rested with the words of
Hoori. Now this whenua is before the Committee and he will see what transpires.
This was a signal that times were changing and that the strict regime of authority based
on whakapapa lineage was being openly challenged by those who were junior members
392
393
R Te Tai in Karanga Hokianga, supra note 172 at 116.
Ibid at 89.
222
of the group under the old system. As the rangatira, Re Te Tai expected the new Land
Court process to provide protection for his authority on the land. He was no longer able
to call upon the old sanctions of “utu” to settle matters according to tikanga Maori.
Further undermining of his mana rangatira followed, after Heremia called a hui in which
he asked for the ancestral gardens to be cleared from Whakarapa and the request was
refused by Re Te Tai. The account of the subsequent events are as follows.394
Ano ka whakaaro a Heremia, e kore aana hiahia e rite i a matou nei, katahi ka huihui e ia nga
tangata o Whakarapa, o Motuti. Ka uru atu ki reira a Wi Mutu, oti noa ake ena hui a ratou. Ko a
ratou whakatakoto, kia mutu ratou te whakarongo ki a matou ko a
aku teina. Mehemea ki te haere tonu ratou i raro i a matou, e kore ratou e pa ki te whenua nei,
engari me hanga tikanga ratou, ara, me para ratou i Motuti, i whakarapa, i Te Hiahia, hei mana mo
ratou. Ko te tangata e oti te para, ka ruia ki te karaihe, ka taiapatia ki the waea, mona tonu iho taua
wahi, a, ko aua korero a ratou, he mae haina ki te pukapuka. Whai hoki me mutu te homai i nga
paru ki au o a ratou rakau e mahi ai i runga i tenei whenua. Ko enei korero na Wi Mutu i korero ki
au. Ki ki atu au; “E pena ana oti a ratou tikanga?”
I muri iho, i te peinga mai o Wi Mutu i Otupawhero e Hohepa Te Tai, ka tae mai ki au, ka mea; “E
hoa, kua peia au e Hohepa. Hoi, e pehea ana koe ki te kainga o Te Hira, i Te Papa nei, hei kainga
moku?” Ka mea atu au; “E pai ana”. Ka tae mai ki Te Papa, ka para. Ka mea atu au; “Hei
Toungarangara mutu ai to para, hei nohoanga mo o hipi.” Muri iho ka timata te para o Te Kaitutae
i te whenua nei, he mea whakanoho tena ki tena wahi, tena ki tena wahi, para ai. No kona ka kii
mai Hotene ki au; “E koro, e pehea ana koe? Kua tino takahi te iwi nei i a koutou ko o teina.” Ka
mea atu au; “Kia manawanui.” Ka mea mai Hotene; “Mehemea koia tena, a, e kore au e
manawanui.” Me hoki mai ia ki Waihou, raua ko Pauro. Ka mea atu au; “Kaore, kia u atu korua
ki roto o Whakarapa.” Muri iho ka hoki mai ano a Hotene ki au. E hia hokinga mai, me taku kupu
atu, kia manawanui. E tatari tonu ana au i tetahi ture pai. I kino katoa a Timoti raua ko Te
Kirihini mo tena take. Kii mai ana raua ki au; “Tena ra to manawanui e au, tahuna ki te ahi tena
whenua.” Hoiano taku kupu atu, e, “E tika ana, na to matou manawanui ko aku teina i tae mai ai
tenei whenua ki roto i enei ra.” Katahi ka whakahaua e Heremia aana tamariki ki te tua i nga
rakau o Kaitara. Ko aua rakau, he toenga i a Taku. Kaore au i whai kupu. Me te mahinga o nga
totara o te taha ki roto o Waipapa, i mahia katoatia e ratou, i runga i to ratou whakatakoto, i
korerotia ake ra e au, me nga kauri toenga o Motuti, me nga totara toenga o Whakarapa, kaore au i
394
R Te Tai, ibid at 115.
223
kiikii atu, ko te take kua rongo ake au i ta ratou tikanga. I muri i ta Heremia mahinga i nga rakau
toenga o Kaitara, ka tonoa atu e au a Hohepa Te Tai ki reira, mahi rakau ai. Katahi ka mahia e
Hohepa raua ko Pakihi, engari i riri a Puriri ki a Heremia, ratou ko nga tamariki, i kii atu; “Ehara
koe i te tangata tika ki te mahi i ena rakau, engari me i ko Re Te Tai maa, ka tika. Ko ratou nga
tangata tika hei mahi i nga toenga rakau o tenei whenua, me nga uri o Taku, he toenga hoki ena
rakau i a Taku.” Na Puriri tonu enei korero i korero ki au. I haere mai Puriri kia whakatakotongia
atu e au he tikanga kia whakawa raua ko Heremia. Ka mea atu au; “E kore au e kaha ki te
whaikorero atu mo to raua raruraru, kia tae ra ano tenei whenua ki te kooti, katahi ano au ka
whakautu i nga whakatuma a ia tangata, a ia tangata. Ko tenei, mahia atu tau tikanga e koe, kei
waho he whakararuraru moku.”
English Translation
Heremia knew that his requests would be denied by us, so he gathered the people of Whakarapa,
of Motuti. Wi Mutu entered into those gatherings there until they ended. They laid down that
they were to stop listening to us and my teina. If they were still to come under us, they would
never have access to this whenua, but they would create their own tikanga, that is, for them to
clear Motuti, Whakarapa and Te Hiahia to achieve mana. The person who does the clearing, sows
the grass seed, erects wire fences, can have that area. All these discussions of theirs were recorded
in a book. Following which, they were to stop giving me the payment for the trees they were to
work on this whenua. These statements were told to me by Wi Mutu. I said, “Is that how their
tikanga goes?”
After, when Wi Mutu was pushed out from Otupawhero by Hohepa Te Tai, he came to me and
said, “Friend, I have been pushed out by Hohepa, so what do you think of the home of Te Hira at
Te Papa for me?” I said, “It is all right”. He came to Te Papa and did some clearing. I said to
him, “You finish clearing at Toungangara for a place for your sheep”. … Then Hotene said to me,
“E koro, how are you? These people are really trampling on you and your teina” to which I said,
“Be patient”. Hotene said, “If that is the case I cannot be patient.” He and Pauro wanted to go
back to Waihou. I said, “No, you stay firm in Whakarapa”. Later, Hotene again returned to me,
several times he did this, but I still told him to be patient. I am still waiting for a good law. Both
Timoti and Te Kirinihi disliked that take. They both said to me, “There is your patience, burn that
whenua”. My words to him were, “it is right, it was through my patience and that of my teina that
the whenua has got through to this day.” Then Heremia ordered his children to cut down the trees
of Kaitara. Those trees were leftovers from Taku. I did not have any words. And the working of
the totara on the side inside Waipapa, they worked it all, according to what they had laid down (at
their hui) which I mentioned before, and the leftover kauri of Motuti, and the leftover totara of
224
Whakarapa. I did not say a word, as I had already heard of their tikanga. After Heremia had
worked the leftover trees of Kaitara, I sent Hohepa Te Tai there to work the trees. So Hohepa and
Pakihi both worked, but Puriri was angry at Heremia and them and their children, and said, “you
are not the rightful person to work those trees, but had it been Re Te Tai and others, that would
have been all right. They are the rightful people to work the leftover trees on this whenua, and the
descendants of Taku, as those are leftover trees of Taku”. Puriri actually told me all this. He
came to get me to lay down a tikanga for him and Heremia to discuss. I said, “I have no authority
to speak about their trouble, until this whenua is taken to Court, that is the only time I will be able
to answer the challenges of each person. This, you work out your tikanga, so that I have no cause
to make trouble.
This attempt at overthrowing the authority of the person with mana rangatira and
replacing it with a new tikanga on the land, would not have been possible under the
regime that operated on the land before European contact. It would have led to battle.
The fact that individuals were being actively encouraged to raise their own mana on the
land, and that no money was to be paid to the rangatira, whose role had been to disburse
funds to members of the community, marks the emergence of an individualistic money
oriented regime being established in competition to the old one. However, when Wi
Mutu is pushed off the land he relies on the old system of “tuku whenua” to provide him
with somewhere to live.
This places the rangatira in a dilemma as to how to best protect his authority. Although
encouraged to take action to show his superiority by burning (clearing) the land, it is not
his preferred option. He also refuses to lay down a tikanga in challenge to Heremia.
Instead he waits patiently for the Court process, which he believes will uphold his claim.
Later on, Re set up an Elders Committee to look after the trees on the land, because so
much work was being done to diminish their numbers:395
Ka kii atu au ki a Wi Tana raua ko Hohepa Te Tai; “Ko taku hiahia, kia whakatungia he komiti mo
nga rakau o te whenua nei, me kore e toe etahi o aua rakau, ahakoa e kore a Heremia ma e
whakarongo.” Ka meinga atu e au ki aku hoa, me karanga nga tangata o Whakarapa kia whakatu
395
Ibid at 123.
225
ai i tetahi o ratou hei tiamana, me kore e waimarie. He rapu tikanga tena naaku kia toe ai nga
rakau o te whenua nei. Ka whakaae aku hoa. Nokona, ka whakatungia he komiti. Ko nga
kaumatua katoa o waihou, me o Whakarapa, nga tangata o taua komiti nei, ko Heremia te tiamana,
ko au te hekeretari. I te whakahaerenga o tena take, ka nui te pai, ka kore hoki te tangata e haere
pokanoa ki te mahi i aua rakau. Kei au, kei a Wiremu Tana, kei a Hohepa Te Tai, nga kupu hei
whakatau i nga tikanga o taua take, i taua wa.
English Translation
I then said to Wi Tana and Hohepa Te Tai, “I want to establish a committee for the trees of this
whenua, so as there will be some trees left, even though Heremia and others will not listen”. I said
to my supporters to call the people of Whakarapa to elect one of them as chairman, and hope they
are lucky. I was looking for a tikanga to ensure that some trees would be left on this whenua. My
supporters agreed and we established a committee there and then. All the elders of Waihou and
Whakarapa were the people of that committee, Heremia being the chairperson, I was secretary.
On the conducting of that take, it was very good, no one came to pokanoa [without authority] work
those trees. At that time, Wiremu Tana, Hohepa Te Tai and I were the ones who made decisions
on the tikanga of that take. …
When people began to cut trees without approaching the committee first, and concern
was expressed that Heremia was not fulfilling his role as chairman. Re Te Tai disbanded
the committee.
Meanwhile, concern for the trees was also being felt by other rangatira in the area. Re
says that Te Rapihana, Te Kirihini, Hone Tana, Naru Ngawaka, Aperahama Te Pukewa
and Herewini Te Toko came to set a rahui of the koroi of Whakarapa, so that no more
would be chopped down before judgment by the Native Land Court had been made as to
entitlements on the land.396
He roa e mana ana tena rahui a matou mo nga rakau o te whenua katoa nei, timata mai i
Matangawhi, tae noa mai ki Matamata. Ko Hone Tana raua ko Te Herewini nga kai-tiaki i nga
koroi. Ko matou, ko aku teina nga kia tiaki i o waihou nei. Ko matou ano ko aku teina, me o
matou tuakana, i tae ake nei, me Te Herewini nga kai-tiaki i o Whakarapa. Ko Koroweo te kai-
396
Ibid.
226
tiaki i o Motuti. Ko matou ano ko aku teina, te kaitiaki i o W.aipapa, ahu atu ki Te Hiahia. He roa
e mana ana tena take, ka haere a Te Rima ki te mahi i nga koroi o Te Hiahia. Ka rongo au, ka
tonoa te tiamana o te kaunihera kia haere, ki te paahi i raro i ta matou whakatakoto. Ka tae mai a
Hemi Kaurera raua ko Tamaho Rawiri, tiamana kaunihera. I haere mai a Hemi i runga i te mana
iho o nga tupuna. I haere mai hoki i runga i te ture, te haere mai a te tiamana. I te ata, ka haere
raua ki Whakarapa. Tae atu ka whakahaerea ko te mana maori e Hemi, ara, ka tono atu kia
whakamutua te raruraru. I oti kia kaua e mahia aua rakau i ta ratou korerotanga. Ka hoki mai
rarua. I muri i tena, ka pai ano te takoto o ta maou rahui.
English Translation
The mana of this rahui was in place for a long time, for the trees on this whole whenua, beginning
at Matangawhi, right through to Matamata. Both Hone Tana and Te Herewini were the kai tiaki of
the white pine. We and our teina were the kai tiaki of Waihou. Koroweo was the kai tiaki of
Motuti. It was us again and our teina and tuakana who came here, who were the kai tiaki of
Waipapa and towards Te Hiahia. The take was in force for a long time before Te Rima went to
work the white pine of Te Hiahia. I heard that the chairperson of the Council was requested to go
to stop them under what we had laid down. Hemi Kaurera and Tamaho Rawiri, chairperson of the
council, came. Hemi came on the mana of the ancestors, as well as under the law as chairperson.
In the morning they both went to Whakarapa. On arriving, it was conducted along the lines of
mana Maori by Hemi, that is, he requested the troubles to cease. It was settled in their talks that
those trees were not to be worked any more. Then they returned. After that the rahui continued in
force.
The combined mana of the rangatira prevailed in the end, owing to the backing and legal
force of the chairperson of the District Maori Land Council, and the insurgents were
brought under control.
h.
Conclusion
The ability to grant tuku of lands and resources was the hallmark of mana rangatira.
There were two, or perhaps three types of entitlement identifiable in the Tai Tokerau
region. They were “tuturu entitlement”, which was based on senior ancestral connections
and occupation; “aroha entitlement”, grants of land made to outsiders and distant relatives
for specific reasons, which reverted to the group’s territorial domain when they expired,
227
and “raupatu entitlement”, when the mana of one group had been wiped from the land
and replaced with that of another group. Occupation was an essential component of all
three claims to title, but did not override ancestry to the land or mana rangatira as a sound
root of entitlement.
With the advent of new opportunities for exploiting resources after colonisation, the
existing hierarchy within groups of Maori began to disintegrate. The authority of the
Court and its sanctions took over the role previously occupied by the rangatira and
heralded the coming of a new era in which egalitarianism would challenge the established
hierarchies within Maori society.
228
(iv)
Raupatu as a Means of Acquiring Territory
a.
Introduction
Raupatu was another means of acquiring territory from existing occupants. The term
“raupatu” is defined in the Dictionary of the Maori Language,397 as a verb to mean
“conquer, overcome” and as a noun to mean “conquest”. In the Papatupu Hearings,
raupatu produced a situation in which, unless all the prior inhabitants had been
annihilated or evicted, or had taken on the identity of the new group, two competing
sources of claim to territory were put before the Hearing Committees, mana raupatu and
mana tupuna.
In this study, I use the term “raupatu” to mean a process whereby the existing mana on
the land is extinguished and a new mana source is established within a territory. The
process is characterised by:
i.
a complete severence of the existing mana rangatira from the land;
ii.
the establishment of a new senior whakapapa line on the land;
iii.
the exercise of mana rangatira authority on the land; and
iv.
examples of tuku being successfully made by the person exercising mana
rangatira to others.
While acts of aggression against groups who were the settled occupants of a territory
were quite common in order to satisfy the “utu” requirements for inter-group offending,
instances where these acts served to totally sever the mana of a rangatira and his people
from the land are rare on the west coast. The main example from this region, is the battle
for the territory of Te Wharo One Roa a Tohe which occurred in the 1700s, in which
Poroa and his people extinguished the authority of Te Aupouri and became the new
authority for the southern portion of the beach, settling permanently in the area and living
at Whangatauatia Pa in Ahipara.
397
H Williams, Dictionary of the Maori Language, 7th Edition, GP Publications, Wellington, 1971, 330.
229
More often, defeating the other side in battle would be sufficient to assuage bad feelings
between groups and to restore mana that had been diminished by a wrongdoing. The
survivors would return to their territory and would carry on as normal, minus one or two
members who had been killed or taken as pononga by the other side. The raids carried
out by Hongi Hika within the Hokianga region and elsewhere come within this category.
In the east coast and middle island Papatupu Hearings a number of applicants based their
claims to land on raupatu having been successfully carried out by their ancestors. This
information provides valuable evidence of the competition between entitlements based on
mana tupuna and raupatu.
In this part of my study I will examine two instances where the claim to land entitlements
is based on “raupatu”. Both state the initial cause of the raupatu to have been the killing
of a woman by her husband’s people, who were distant relations, for which utu was
sought by her whanau and their supporters. In neither case does whanaungatanga appear
to have prevented extreme actions being taken against the perpetrators of the killing and
their group. The first example is taken from the Okuratope, Waimate Hearings held in
1902,398 for the areas of Waitangi and Kerikeri and inland toward Waipapa, and the
Mangonui, Te Tii, Waimahe Block Hearings in 1904,399 for the coastal area stretching
from Kerikeri northward to Mangonui. The second example is taken from the Matawaia
Block Hearings, also held in 1904,400 for entitlement to lands in the central Tai Tokerau
region around Ohaewai.
b.
Okuratupe, Waimate Papatupu Hearings 1902
On the east coast a number of claimants based their entitlement to land on the raupatu of
Waimate by Auha and Whakaaria. Auha and Whakaaria were from Ngaitawake, which is
referred to by speakers throughout the hearing as a hapu of Ngapuhi. In Ngapuhi
398
Okuratope Hearings, supra note 255.
Te Tii, Mangonui, Waimahe Hearings, supra note 181.
400
Matawaia Papatupu Block Committee Hearings, MB 31, 363.
399
230
whakapapa, they are two generations before Hongi Hika, which locates their activities as
being somewhere in the early to mid 1700s.
According to Hiramai Piripo, Auha and Whakaaria’s sister, Whakarongo, married Kaihu
and moved to Waitangi to live with him and his people, Te Whanauiti. Later, the
brothers decided to visit her. During their visit they were insulted by the behaviour of
their brother-in-law’s people in serving them small kumara while eating larger kumara
themselves. The brothers decided that some form of reprisal was necessary to assuage
the insult they had suffered. According to Hiramai Piripo, when Auha left he dug his
paddle into the soil and then sniffed it, commenting that it was no wonder that the kumara
were so big when the soil smelt so sweet. After this the feeling of the inlaws toward
Whakarongo worsened. Auha and Whakaaria sought assistance from their relation,
Kauteawha, who asked the extent of the reprisal sought. Auha is reported to have said
“me pei atu kia haere ora nga tangata kia mate kote whenua anake” , 401“push the people
out so they remain alive and only the land will suffer”. However, on hearing that his
sister had been killed by her husband’s people, his words are reported to have changed to
“me mate he tangata me mate te whenua”, “men must die and the land will die too”.402 In
the ensuing battle the rangatira, Kaihu, was killed and the survivors of Ngati Miru and
Wahineiti were driven off their land, escaping to Waimamaku in the west and Mangonui
in the north. According to Piripo, Auha and Whakaaria took the mana rangatira, and
Auha made tuku to those who assisted him in the raupatu.403
The Okuratope Block, Waimate North Hearing, demonstrates the difficulty of claiming
raupatu as a root of title, in the absence of specific tupuna who remained on the land.
There is a dispute between Hiramai Piripo who is claiming directly from Auha and
Whakaaria as his ancestors for the raupatu, and Wi Titore, spokesperson for Te Nana
Whataparaoa, who claimed via raupatu under his ancestors Rangititakipu and Te Naana.
According to Titore the four rangatira are closely related and all participated in the
401
H Piripo, Okuratope Block, supra note 255 at 77.
Ibid.
403
Ibid at 80.
402
231
raupatu of the area with equal authority.404 When questioned in detail about the history
of the block, however, Titore’s lack of an intimate knowledge of the land was apparent,405
even though his supporters were able to set out boundaries for the area claimed.406
According to Titore:407
Ka oti te takiwa ki raro te roherohe e raatou ka huri ake a e Rangitutakipu me te Naana me etahi
hoki kahore ahau e maatau e rongo ana ahau no Ngaitawake ka karopotia e raatou a Okuratope ka
kiia tena whenua i reira no Ngatikuta raaua ko Ngaitawake timata tonu atu te nohoia o tena
whenua e enei hapu mate noa tenei kuia a Kuta i whakatarea ki kona, a, koiwi noa katahi ano ka
kuhua ki te ana.
Ka timata te noho a tae noa ki a raatou tamariki mahue noa ia ratou tena whenua engari ehara i te
mea whakarere mate atu etahi o raaua uri ki Otuihi.
English Translation
When the boundaries of the area were done by them, te Rangitutaki, Te Naana and others I do not
know, just hear they are from Ngaitawake, encircled Okuratope and it is said that land there
belongs to Ngatikuta and Ngaitawake, and occupation took place right away by these hapu right
until the death of this kuia, Kuta, who was placed on a platform until the flesh disintegrated
leaving just the bones which they hid in the cave.
They lived there then, right to the time their children until they left that whenua but did not leave
for good, some of their uri died at Otuihu. …
In this evidence there is confusion as to what took place and who participated. This
makes tracing the new ancestral line on the land difficult. Auha, Whakaaria, Kaingaroa,
Hotete and Hika all stayed at Okuratope Pa at some time, which lent strength to the claim
of the mana rangatira belonging to their line of ancestry. The burial of the ancestors
spoken of by Titore and Paora Te Nana, in the land, also provide evidence of a link being
established between the people they named as ancestors and the land.
404
W Titore, Okuratope Hearings, supra note 255 at 14.
H Piripo, ibid at 19-20.
406
TN Whatapaoro, ibid at 9, 25.
407
W Titore, ibid at 9.
405
232
In the Okuratope Hearings, Hiramai Piripo says that all the land of Waimate is subject to
a single conquest, that of Auha and Whakaaria, as utu for Whakarongo’s death by
Ngatimiru and Wahineiti.408 His detailed knowledge of events on the land is greater than
Titore’s. According to Piripo, following the raupatu of Pahangahanga, the people at
Okuratope fled. Following that Whakataha was taken at Waitangi. From that time,
Okuratope and Waimate were taken permanently under the authority of both Auha and
Whakaaria. Some places were sold by the descendants of Auha and Whakaaria to
Pakeha, after the battle. The rest of the land was divided, Matatawha to Te Rangitutakipu
and te Naana of Ngati Kuta. That tuku had continued to the time of the Hearings. When
it was completed, a further tuku of Takanini and te Kauri was made to Whao of
Ngaitawake and his people.409
The Committee410 resolved these claims to separate lines of authority having been
established on the land by the practical expedient of upholding Hirimai Piripo’s claim
based on conquest by both Auha and Whakaaria of Ngatimiru and Wahineiti, and also
upholding that of Nana Whataparaoa based on conquest by both Rangitutakipu and Te
Naana of Ngatimiru. A further claim by Taniora Te Korohunga, of conquest by
Tawakehaunga of Ngati Pou was not upheld because there was no evidence to support
this particular conquest having taken place. The Committee allocated 55 acres of
Okuratope to Hiramai Piripo and those claiming under him, and 15 acres to Te Nana
Paora on whose behalf Titore had spoken. All three claimants, including Te Korohunga,
were granted shares in the burial ground of Hoanga, because their ancestors were buried
there.
c.
Te Tii, Mangonui, Waimahe Blocks 1902
According to Hiramai Piripo this was a continuation of the Waimate raupatu. In this
recounting it is Kauteawha who suggested that the people occupying Waimate be killed
408
H Piripo, ibid at 94.
Ibid at 80-82.
410
Decision of Court, ibid at 109.
409
233
and Auha who said it was better to let them live and take the land instead. According to
Piripo, at that time Ngapuhi hapu extended from Kaikohe to Waipu. A hui was called of
Ngati Whakaeke, Ngati Tautari, Ngai Tawake and Te Mounga, at Kaikohe, and they all
agreed to fight Wahineiti. They systematically moved across the land clearing the people
off it.411 Following the battle the land was divided by Auha and Whakaaria amongst the
supporting hapu.412 The defeated hapu went to Hokianga and to Mataka, Te Tii and
Mangonui.
According to Piripo, three years later, Auha and Whakaaria decided to attack the
surviving Ngati Miru and Wahineiti. They sought the assistance of Kauteawha, of Ngati
Rahiri who was resident in the Bay of Islands. Auha, Whakaaria and their nephew, Toko,
went by land and Kauteawha went by sea. They built a Pa, Te Waha o te Riri, at
Mangonui, from which Ngati Miru and Wahineiti were defeated. The words of
Kauteawha, spoken at Waha o te Riri, are reported as, “Ka ea to korua whangainga ki te
kumara piha me te matenga hoki o to korua tuahine o Whakarongo”, or “your being fed
with small kumara and the death of your sister is now cleared”.413 The import of this was
that, in his view, the utu for both wrongs had been compensated.
i.
Tuku by Auha
According to Piripo, Auha’s response was “Ko tenei e Tamara e Kauteawha ko koe ano i
kauhoe mai i te moana kia koe ano te mana o te moana me nga takiwa katoa o Mataka”.
414
or “Kauteawha, because you alone came by sea to you alone I grant the mana of the
sea and all the region of Mataka”. Kauteawha agreed, and according to Piripo “ka riro te
mana o te moana o Mangonui ahu atu ki Mataka ia Kauteawha me tona iwi me Ngati
Rahiri”.415 “the mana of the ocean of Mangonui out to Mataka was taken by Kauteawha
and his people of Ngati Rahiri”. Piripo says that Auha and Whakaaria then made tuku of
411
H Piripo, Te Tii, Mangonui, Waimahe Hearings, supra note 181 at 149.
Ibid at 150.
413
Ibid at 154.
414
Ibid.
415
Ibid.
412
234
all the lands at Waha o te Riri and Mangonui to Toko, who later made tuku to the
ancestors that Piripo raised in his korero.
Aperahama Parangi also claimed land entitlements via raupatu to the area of Takou.
According to Parangi, Auha and Whakaaria made tuku of the area of Takou to Toko,
which was disputed by Auha’s son, Hotete.416 Competition arose between the two for
authority over the area. Symbols of rahui established by Toko to signify the
establishment of his mana over the area were removed and replaced by those of Hotete.
Toko then dug a ditch to indicate the boundary of his territory. Matters between the two
deteriorated until the situation was resolved by trial by combat in which two sides of 70
warriors fought each other. Hotete’s group were overwhelmed and he conceded the land
to Toko.417 A second claim to entitlement of land was made by Parangi under mana
tupuna, beginning from Toko, who was 7 generations past.418 This was an alternative
claim, and a weaker claim, the true root of title being raupatu consolidated by residence
on the land. An interesting comparison is provided here in that it took more than 7
generations on the land to produce mana tupuna status derived from raupatu, while in the
Hokianga Hearings 10 generations on the land was sufficient for mana tupuna status to
have become the principal claim. Somewhere in between, the root of entitlement
undergoes a transformation.
In the claim for Te Tii, Mangonui and Waimahe Blocks, Hone Rameka and Hare Napia,
claimed under mana tupuna from the ancestor Turou who predated the raupatu of Auha
and Whakaaria, and whose ancestors had remained living on the land up until the time of
the Hearings. According to Rameka, the land at Te Tii was not subject to the raupatu of
Auha and Whakaaria and the people on the land were descended from Turou of
Wahineiti,419 Te Hikutu and Ngati Rehia.420
416
A Parangi, ibid at 51.
H Piripo, ibid at 156.
418
A Parangi, ibid at 51.
419
H Rameka, ibid at 27 and 115.
420
Ibid at 34.
417
235
The debate about the extent of the raupatu was intense. The physical existence of
members of the old regime on the land gave credence to Rameka’s claims, while the
technical argument raised by Piripo of a new mana being exerted over the entire area also
held merit. The Committee was divided, 3 members supporting Piripo and 3 supporting
Napia. The Chairman voted “he keehi tika” in each case, thus upholding both the claim
based on raupatu and that based on mana tupuna.421 In both cases current occupation
seems to have provided the Committee with a way of resolving the deeper conflict
between the two sources of entitlement. That it was “shares” in land, rather than specific
interests, that the Committee was awarding, made compromise easier, as people were
able to remain in occupation of the land on which they were living. Thus, once again the
ongoing relationships on the land, in terms of both whakapapa and whanaungatanga
principles, were protected.
d.
Matawaia No. 1 Block
At the Hearing for Matawaia No. 1 Block, held at Ohaewai, Perepe Komene, who lived at
Ngawha, claimed entitlement to the whole block as a descendant of Whaingaroa. He said
that Matawaia and Ohaewai had once belonged to Ngati Pou and Te Roroa. They had
lost the land through raupatu to Whaingaroa, Kaitara and Matahaia, following the killing
of Whakapu, wife of Kopiri, by Kakanui of Ngati Pou. After the raupatu Whaingaroa
and his people, Ngati Rehauata, lived at Matawaia and worked on the land under
Whaingaroa’s mana.422 Ngati Pou were defeated at Pikoi and the survivors were taken
from the land to live in other areas.423
After the raupatu, the land was divided by Matahaia, Kaitara and Whaingaroa. Kaitara
remained at Ahuahu, Matahaia at Ohaewai, and Whaingaroa at Matawaia.424
Pepere sets out the pa that were taken in the raupatu and the boundaries, as follows:425
421
Decision, Te Tii, Mangonui, Waimahe Hearings, supra note 181 at 243.
K Perepe, Matawaia Hearings, supra note 400 at 3.
423
Ibid at 4.
424
Ibid.
425
Ibid at 6-7.
422
236
E mohio ana au ki nga pa o nga Tipou i tenei patuna e 9, 1 Maungaturoto, 2 Kauauarau, 3 Porutu,
4 Takaporuru, 5 Patikotiko, 6 Piriwai, kati ano nga mea e mahara ana au. …
Rohe o te raupatu – Timata mai i Rakautapa, kahaere mai i te raina a Mita Henare i te
Manowhenua Onewaha, pakohatu, ka heke kite wai o Pekekaka tika tonu mai ki Taiamai, ka tika
ki Wairere tika tonu ki wharetaua, ka huri mai i reira, tika mai ki Pahangahanga, Waitohi, ka ahu
kite Ahuahu Puke te Waimimiti, Oruariwharo, ka huri kite Ngawha. Tahakino, haere i roto o te
wai ka tutuki ki Rakautapa. …
Ae koia tena ko te rohe kia Whaingaroa toenga o te wahi kua hokoa kite pakeha!
English Translation
I know there were 9 pa of nga Tipou in this killing. Maungaturoto, Kauauarau, Porutu,
Takaporuru, Patikotiko, Piriwai are the only ones I remember.
Boundaries of the raupatu – Beginning at Rakautapa, come towards the line of Mita Henare at
Manowhenua Onewaha, Pakohatu, down to the waters of Pekekaka, straight to Taiamai, to
Wairere, straight to Wharetaua, turn from there to Pahangahanga, Waitohi, go in the direction of
Ahuahu, Puke and Waimimiti, Oruariwharo, and turn to Ngawha, Tahakino, go through the water
and end up in Rakautapa. …
Yes, that is the area of Whaingaroa, remnants of the place that has been sold to the pakeha!
Hirini Taui of Ngati Rangi was another claimant who claimed to know all the tikanga of
the land. He says there were three separate killings by members of Ngati Pou that
precipitated the raupatu against them. This is consistent with the practice on the west
coast of waiting until several “take” had arisen before seeking reprisal for accumulated
offences. Taui names the rangatira whose people combined to carry out the raupatu as
being Kaitara, Matahaia, Tapua and Whaingaroa. The pa fought were Urutapu,
Takaporurutu, Piriwai, Ruapango and some others that he cannot remember. After the
raupatu Matahaia and the others returned to Ruahonga and the remaining Ngati Pou
retired to Maungaturoto. Some Ngati Rangi women living at Maungaturoto Pa were sent
to Matahaia and Kaitara to admit defeat and to ask them to leave the land. Matahaia’s
response is reported as being, “Ko ahau i toa, ko koe i mate, ko koe e haere”, “I won, you
237
lost, you leave”.426 Then Te Whiti went to Maungaturoto and Pakae made tuku of his
garden to Whiti, and te Maunga also made a tuku of his garden at Papehanga to Whiti.427
According to Taui, they did this because they knew Whiti would be obligated to give a
gift for the land they were releasing. Whiti led the way to just before Okaihau, where
Ngati Pou split. Kouie and his people went to Whangaroa. Te Maunga and Pakaa and
Tukarawa went to Otuaone. Whiti remained at Otuaone. After that the land remained
tapu.428
It is unclear in this account whether Whiti is a member of the raupatu group, who was
sent to provide Ngati Pou safe passage from the land, or whether he was a member of
Ngati Pou. The tuku of the gardens to him, indicates that he was a member of the raupatu
group, but his concern for the welfare of Ngati Pou in leading them from the land
indicates either that he had very close whakapapa links to Ngati Pou, or that the rangatira
bought their safety with the tuku of land.
Taui sets out the divisions of territory following the raupatu as follows: 429
No te taima ka hoki mai a Whiti ki konei, tae mai, ka tahi ka wehewehea te whenua ko te taha
hauraro ia Kaitara, na Matahaia, na Whaingaroa me etahi atu i wehewehe. 3. Nga pakarutanga.
Ko te wehenga kia Matahaia me ona iwi i raro ia ia. Timata i Matamatapouri e ahu ana kite hau
raro, haere i te wai o Pekekaka, Waitaiki, ka huri ki te hau auru. Ka haere i roto o te awa o
Waitaiki. Ka eke i te taha hauraro o Rarahi te Waimimiti, a whiti ite Waitukurae, Turapakuri, ka
huri ki te tonga. Ka haere ite raina ate Aara, te Kohatu ate Hauaa, Paremata, ka huri kite
marangai, Ngakiriparauri, Tekupukupu, Te Ngawha, Mangatoai, ka huri ano ki te hau raro,
Taimimiti, ka eke ki uta ka huri kite marangai. Te mata ote whenua, Tauaki, Titiraukawa, Kauae
Whapuku, Te rere a Pauau, Tupapa Wherere, Pekekaakaa, ka tuhono ki Matamatapouri. Tena wahi
i wehea kia Whaingaroa me ona hapu i raro i a ia.
426
H Taui, Matawaia Hearings, ibid at 22.
Ibid.
428
Ibid at 23.
429
Ibid at 24.
427
238
English Translation
From the time Whiti returned there, the whenua was divided, the northern to Kaitara, Matahaia,
Whaingaroa and other divisions. The divisions. The division to Matahaia and his iwi under him
began at Matamatapouri and faced towards the north, along the waters of Pekekaka, Waitaiki, then
turn to the west. Go through the river of Waitaiki, climb to the northern side of Rarahi te
Waimimiti, cross to Waitukurae, Turapakuri, then turn south. Go along the line of Te Aara, the
rock of Hauaa, Paremata, turn to the east, Ngakiriparauri, Tekupukupu, Te Ngawha, Mangatoai,
turn again to the north, Taimimiti, go ashore and turn to the east. The surface of the whenua
Tauaki, Titiraukawa, Kauae Whapuku, the waterfall of Pauau, Tupapa Wherere, Pekekaakaa, then
join up at Matamatapouri. That area was divided out to Matahaia and his iwi under him.
The boundaries set out by Taui for Matahaia and those under him are very clear. He also
sets out the area that was divided out to Whaingaroa and his people in the south.430 He
also states that the descendants of Te Reinganui have entitlements based on take tupuna
in the Oromahoe area facing Te Tii, as that land belonged to Ngati Tehina. 431
The raupatu of Matahaia takes place during the lifetime of Moetonga, who is the ancestor
for Waireia on the west coast. According to Taui, she was the wife of Te Uira, who was
an uri of Te Reinganui.432 That would place this raupatu in the 1600s or earlier.
e.
Conclusion
Occupation is important with raupatu claims, in order to establish that it was not just a
battle against people but that the land was subdued as well. Complications arose when
existing members of a group were left in occupation and married into the new occupants,
as to which was the correct source of title. In the east coast Hearings there is a contest
between those claiming mana tupuna entitlements from ancestors that predated the
raupatu and those claiming via raupatu. In these circumstances, as with Korohunga’s
claim to Hoanga wahi tapu, the establishment of wahi tapu reinforced the link of the
430
Ibid at 25.
Ibid.
432
Ibid.
431
239
newcomers and their descendants to the land. The wahi tapu is a mark of their permanent
occupation, the implication being that only people with a legitimate claim to the land
would be willing and entitled to lie there in death.
In situations like this, the complexity of two groups living together under two different
regimes which produced competing claims was resolved by reliance on current
occupation as a source of entitlement. The allocation of shares rather than definite
interests in land also made it easier for Papatupu Committees to reconcile competing
claims.
(v)
Setting Boundaries Between Group Territories
Territorial boundaries were set for two reasons. The first, was to ensure peaceful coexistence after a series of disputes over resources, as with Ngati Korokoro and Ngati
Manawa in the Hokianga region. The second, occurred after a raupatu when the
successful rangatira, having extinguished the prior mana to the land, re-distributed the
land to other rangatira and set the boundaries between the various groups. Once
boundaries were settled the new rangatira was responsible for organising and maintaining
the tikanga on the land.
During the Papatupu Hearings each claimant set out the boundaries laid down by the
tupuna from whom they were claiming land entitlements. There was an expectation by
the Hearing Committee that those who asserted mana rangatira status would have an
intimate knowledge of the land, including its history and ancestral boundaries. Those
who did not know the boundaries were not held to be as credible as those who did know
them.
Ancestral claims to land covered broader areas than the Blocks being adjudicated by the
Papatupu and Native Land Court in the 1900s. In the Whakarapa/Waihou Hearings,
Heremia Te Wake claimed that the areas of Herewini Te Toko’s proper ancestral
entitlements under mana tupuna extended over into the area of Waireia; Wiremu
240
Rikihana’s toward Waihou and Matamata Blocks; Herepete Rapihana’s toward
Ngarongotea, Kahakaharoa, and Wairoa Blocks; and Taniere Rangipaoa’s toward
Ngunguru Block.433 However, even though they may have possessed stronger claims
elsewhere, the Papatupu Committee found that they also held entitlements to the lands
within the Waihou/Whakarapa area, based on mana tupuna.
In the Whakarapa/Waihou Hearings, Re Te Tai states that Ngati Moetonga and Ngati Te
Reinga were constantly disputing territorial boundaries. To settle the disputes, a
boundary was laid down which still existed at the time of the 1904 Hearing. I include an
English translation of Re Te Tai’s recitation of the causes of the battle and the boundary
set down in order to illustrate its detailed parameters, and the depth of knowledge of land
held by one who exercised mana rangatira.434
Na Ngati Te Reinga te whawhai tuatahi. He whawhai ki a Ngati Moetonga mo nga rohe o te
whenua nei. E kawe mai ana Ngati Moetonga i te rohe ki te awa o Waihou nei, ara, ki te tou o
Moetonga, i te wahapu o Te Kohe. E kawe ana Ngati Te Reinga i te rohe ki Ngaha. Ka waiho hei
tautohe ki waenganui i a raua. I roto i tena tautohe ka noho huihui raua. Katahi ka
whakatakotongia tetahi pakaru i waenganui i a raua kia wehe te taha ki a Ngati Moetonga, kia
wehe ki a Ngati Te Reinga. Te otinga iho o tena tautohe ka unuhia mai te rohe i Ngaha, ka unuhia
hoki to Ngati Moetonga i te awa o Waihou nei. Ka whakatuturutia e enei iwi e rua, hei
Whanganamu te rohe. Ka mutu tonu tena raruraru i roto i te wa i a Matauturangi ma, tae noa mai
ki nga nga ra i a Kahi, i a Poroa, ka pokaiaketia e ratou he tikanga. I te otinga o tena rohe, kaore i
puta tena rohe, mai ano i a Matauturangi, i a Te Reinga, i a Te Kuri, i a Niwa, i a Te Ruapounamu,
i a Kahi, i a Papahia, i a Ngakahuwhero, i a Te Tai raua ko Te Hira, tae noa mai ki au nei. Kaore
tena rohe i whakararua e etahi atu iwi, ki taku rongo ki oku matua, ki a Muriwhenua hoki. Ko Te
Tungutu, ko Kahi, ko Pakurakura nga mea i raruraru mo taua rohe i muri iho nei. Ko oku tupuna
nei i hiahia kia nukuhia taua rohe ki Waireia.
Kei te awa o Motukaraka te rohe a Ngati Te Reinga mo te taha ki te marangai o te whenua nei. Ka
haere i roto i taua awa tae noa ki te wehenga o Pukekohe, me Te Tapuwae. Ka haere i roto i te
awa o Pukekohe ka tae ki Kohatuhapai, ka marere ki te wai o Manganuiowae. Ka heare i roto i
taua wai ka ahu ki waho Hoehoea, Otangaroa. Ka haere i roto i Otangaroa awa, te taha ki tua o
Panguru. Ka marere ki te awa o Waihou, o Wharerimu hoki, ka eke ki Maungapohatu oneone. Ka
433
434
H Te Wake in Karanga Hokianga, supra note 172 at 24-25.
R Te Tai, ibid at 64.
241
haere, ka tae ki Maungapohatu kohatu, Te Puaorei, Tarawa, Kukupa, Te Pare, ka eke ki Tauwhare.
Ka heke Te Rau o Te Aute, Rangionoono, ka whiti i runga o te awa o Waiheke, ka kake Raukawa,
Te Koropiha, Omonoa, ka haere i roto i Omonoa awa, Okaraua. Ka tae ki tetahi kowhatu ko
Whanganamu te ingoa. Ka haere i te tahataha nei Matariki, Wekoweko, ka whiti i Waihou awa,
Kowhatuhapai, Toungarangara, te waha o Te Marangai, ka whiti i te awa o Motuti, Motukauri,
Otongatonga, Te Kurukuru, ka whiti i te awa o Whangapatiki, Pongipongi, Puhikaiata, Kaitara,
Waiohaoa, Te Pane o Haiti, Te Hoanga, Oruangongoro, Purakau, Te Kahikatoa, Matawera, ka
tuhono. Ko te rohe tena. Ko tenei te whenua no Ngati Te Reinga tuturu, no nga uri o Te Reinga.
Kei a Tupoto te raruraru o tena whenua i mua, o te taha ki roto, i raruraru i a Tupoto raua ko
Matauturangi. He uri ngatahi hoki raua no Kaharau.
Te Rohe a Tupoto
I te rongonga o Tupoto i tena raina ka rahuitia e ia a Puhikaiata, ka poua e ia te rohe ki reira. Ka
waiho tena he pakanga ma raua. Ka kake i Puhikaiata, ka eke ki runga ki te io nui o Pongipongi te
rohe a Tupoto. Ka pakaru i waenganui o ta tera rohe Te Kaiwhakapaepae, Te Umukiwi, Ahikiwi,
Herepahore, Pukewharariki, ka marere ki te kuinga o Pukekohe. Kaore i oti tena tautohe i te wa i
a raua e ora ana. No te wa i a Te Reinga, me Kairewa, uri o Tupoto, ka oti tena tautohe. Ka
whakahokia mai te rohe i te awa o Motukaraka ki Oruangongoro. Ka whakahokia atu hoki te rohe
i Puhikaiata ki Oruangongoro, ka mau te rongo o tena raruraru. Timata i Oruangongoro, ka eke ki
Toetoe, Puteehua, Te Kaiwhakapaepae. No kona ka haere i runga i te raina a Tupoto. Ka haua
tetahi rakau i kona ka whakakanohitia. I te wa i a Te Reinga raua ko Kairewa ka huaina taua wahi
ko Te Rakauwhakakanohi, tae noa mai ki naianei. Ka wehe te taha ki roto ki a Ngati Kairewa, ara,
ki Ngaitupoto. Tera atu ano ia nga tangata, i a ratou tera wahi. Ko te rohe nui tena mai i a
Kairewa raua ko Te Reinga, tae noa mai ki naianei, koia na ano te rohe.
English Translation
The first dispute belonged to Ngati Te Reinga. It was a dispute with Ngati Moetonga for this
whenua. Ngati Moetonga was extending their rohe to the river of Waihou, that is, to the seat of
Moetonga, at the bay of Te Kohe. Ngati Te Reinga was extending their rohe to Ngaha, which left
that as a dispute between them. They stayed together in their quarrel. A split was laid down
between the two of them, to separate the side to Ngati Moetonga and the side to Ngati Te Reinga.
The ending of the quarrel, the rohe of Ngaha was lifted and so was Ngati Moetonga’s rohe to the
river of Waihou lifted. It was settled by these two iwi, for Whanganamu to be the rohe. So that
ended that trouble at the time of Matauturangi and others, right down to the days of Kahi and
242
Poroa, they have assembled their tikanga. At the completion of that rohe, it remained the same
right from Matauturangi, Te Reinga, Te Kuri, Niwa, Te Ruapounamu, Kahi, Papahia,
Ngakahuwhero, Te Tai and Te Hira, right down to myself. That rohe was not disturbed by any
other iwi, according to what I heard from my matua, and Muriwhenua too. Te Tungutu, Kahi,
Pakurakura were the ones who were in trouble for that rohe later on. My tupuna wanted to shift
that rohe to Waireia.
The rohe of Ngati Te Reinga is at the river of Motukaraka, for the eastern side of this whenua. Go
through that river until the separation of Pukekohe and Te Tapuwae. Go in the river of Pukekohe
until Kohatuhapai is reached, and descend to the waters of Mananuiowae. Go through those
waters towards outer Hoehaea, Otangaroa. Go in the Otangaroa river, the side beyond Panguru.
Descend to the river of Waihou, Wharerimu also, and embark on Maungapohatu beach. Proceed,
until Maungapohatu rock is reached, Te Puaorei, Tarawa, Kukupa, Te Pare, and embark to
Tauwhare. Go down Te Rau o te Aute. Rangionoono, cross the river of Waiheke, climb
Raukawa, Te Koropiha, Omonoa, go in the Omonoa river, Okaraua. Reach a rock by the name of
Whanganamu. Go to the sides of Matariki, Wekoweko, cross the Waihou river, Kowhatuhapai,
Toungarangara, the mouth of Te Marangai, cross the river of Motuti, Motukauri, Otongatonga, Te
Kurukuru, cross the river of Whangapatiki, Pongipongi, Puhikaiata, Kaitara, Waiohaoa, Te Pane o
Haiti, Te Hoanga, Oruangorongoro, Purakau, Te Kahikatoa, Matawere and join up. That is the
rohe. This whenua belongs to Ngati Te Reinga tuturu, to the uri of Te Reinga. Tupoto was the
cause of the trouble on that whenua before, concerning the inner side, trouble between both
Tupoto and Matauturangi. They are both uri of Kaharau.
When Tupoto heard that line, he put a rahui on Puhikaiata and staked the rohe there which left that
as a pakanga for them. Climb Puhikaiata, embark on the big ridge of Pongipongi, the rohe of
Tupoto. And split in the middle of the other rohe Te Kaiwhakapaepae, Te Umukiwi, Ahikiwi,
Herapahore, Pukewharariki, and descend to the source of Pukekohe. That quarrel was never over
during the time they were alive. At the time of Te Reinga and Kairewa, uri of Tupoto, that quarrel
was finished. The rohe at the river of Motukaraka at Oruangongoro embark on Toetoe, Puteehua,
Te Kaiwhakapaepae. From there, proceed along the line of Tupoto. A tree was chopped and
carved into a face. At the time of both Te Reinga and Kairewa, that place was named Te
Rakauwhakakanohi, right down to this day. The inner side was separated to Ngati Kairewa,
namely Ngaitupoto. There were other people who had that other place. That is the big rohe from
the time of both Kairewa and Te Reinga, right down to this day, those are still the rohe.435
435
Re Te Tai in Karanga Hokianga, supra note 172 at 65.
243
The ancestral boundary between Waireia and Waihou is set out by Wiremu Rikihana, one
of the main claimants for both blocks:436
Commencing at Te Kohe, Matariki, Whanganamu, Pohaturoa, Ngaio, rounding Te Karaka Point,
Tokangararara, Te Raupo, Te Awa, Tawiri, Ngamotu, Roherohe, Punehu, Te Teke-a-Moetonga,
Hauauru, Te Horo, then to Ngaha stream, Te Pikitanga, Te Haneanea, Te Au-o-te-moana,
Papataraire, Te Ihumango, Paparata, Tauwhare, Te Takanga, Te Rau-o-te-Aute, Rangiaroaro,
Whitikia, thence to te Kohe, the point of commencement.
The portion of land on the Waihou side of this belonged to Te Reinga. Moetonga and Te Reinga
are not of the same generation. I cannot say what ancestor accompanied Moetonga in laying down
this boundary, I do not know what ancestor owned the land on the western side, in the time of
Moetonga.
The kaumatua say there was an ancestral boundary for Matihetihe. Pako and Paremata stated that,
that land (Matihetihe) was cut off for the Raraku and Kaingakore. I do not know what ancestor
owned the land on the east side of that boundary, that is, between Matihetihe and Te Peke.
The ancestors set up for Wairoa were Ngarowiwi, More and Marunui. All these persons are
descendants of both Moetonga and Tangaroa Tupo.
The land which I have described belonged to Moetonga, but I never heard that the land westwards
of it, to the coast belonged to Moetonga. I do not know whether it was from Tangaroa Tupo, or
from Moetonga that Ngarowiwi inherited his rights.437
Hami Wi Mutu lays down the following boundary for Moetonga’s ancestral rohe for
Waireia:438
Commencing at Tokotoko-o-Moetonga thence to Teke-a-Moetonga, thence to Heneanea, thence
generally northwards to the ridge of a range, thence turning eastward towards Tauwhare, thence to
Rau-o-te-Aute, thence following the Whitikia swamp to its mouth, thence following the Kohe
stream to the Tou-o-Moetonga, thence following the edge of the river to Ikapirau, Pohaturoa,
thence following Te Karaka Point, following the edge to Awa Tawiri, Ngamotu, crossing to the
436
W Rikihana, Waireia Hearings, supra note 175 at 46.
Ibid at 46-47.
438
H Wi Mutu, ibid at 74.
437
244
commencement. This is the description of the boundary laid down by Moetonga for Waireia.
Tangaroa Tupo and others, contemporary with Moetonga, owned the land west of this.
A similar line is laid down by Hunia Paaka, who lives in Waihou. Although the order of
the recitation is different, it includes the same places.439
Himiora Kamira who lived at Wairoa and was claiming for Te Peke and Pupuwai areas,
laid down the boundary between Wairoa and Te Peke:440
More and Te Kotuku laid down the boundary between Wairoa and Te Peke. More owned the land
on the Wairoa side of that boundary. The boundary between Te Peke and Waireia was laid down
by Te Kotuku on one side (for Te Peke), and Maraewhiti and Taoi for the Waireia side.
I can describe the boundary. Beginning at the Ngaha stream then west to Te Pikinga, then ascend
to Haneanea, then north to Waipa, then by Waihouru stream, then in a straight line to
Tapataparuru, then round the Raukau Tanerua stream, then ascend to Ihumango, then north east
ascending to Tauwhare, then north to Pukekotihe, thence south-west to Puketotara, thence west
following the summit of a ridge to Ratawharara, Pukewharariki, still following the range to Poare,
then south to Porokowhai, Papamaii, Puketutu, Waikapu, Otauira, Te Kahu. Then to the boundary
of Te Ohu, Papamangemange, then in a straight line to Pukemaire, then Karemoa, then to the
boundary of Te Ruaki, follow the boundary of that line to Pupuwai stream, then along the shores
of that stream east to Waiparera, then follow the boundary to Waiparera to Te Mataa, to Rotokahi,
Matangawhi, Patikipapa, then to the boundary of Hauauru, along that boundary to the Ngaha
stream, and the point of commencement.
A feature of boundary setting is that it is done by encircling the area, following known
natural features such as rivers, rocks and hills and naming the various places. In both the
Whakarapa/Waihou Hearings and the Waireia Land Court hearing, changes in boundaries
are said to have occurred in successive generations in order to settle disputed areas and to
reflect changes in group composition as people, moved, married, gave birth and died.
Many of the claimants for the Waireia Block in 1913 are the same as for the
Waihou/Whakarapa Block, which was settled nine years earlier in 1904. While the
439
440
H Paaka, ibid at 78-79.
H Kamira, ibid at 89-90.
245
evidence appears to be more tailored in the Waireia hearing, concerning less detail
regarding the recitation of historical events and disputes over territory, the method of
setting boundaries is the same as that used in the earlier Papatupu hearing for Waihou and
Whakarapa.
On the west coast the recitation of ancestral boundaries distinguished those with tuturu
claims from those with weaker claims. The stronger claimants know the original
boundaries set by the rangatira in earlier generations, and can trace their whakapapa
associations to land down to the present generation. Those with weaker claims have only
limited ancestral links to specific areas of land that their whanau has occupied by virtue
of a tuku from the senior line in the past. For this reason, Heremia Te Wake’s lineage is
described as “he huruhuru i runga i nga wae o Te Tihi”, “hairs on the legs of Te Tihi” by
Re Te Tai.441 Tiapakeke’s , (fathter of Heremia), lack of whakapapa associations on the
land are related by Pauro Te Rangaihi, who also describes his own connections as being
“he uaua anake” “only veins [not a main line].442
On the east coast boundaries are more tenuous, the area having been colonised and
recolonised by different groups of Ngapuhi through raupatu. In these circumstances,
occupation took on great importance as an indicator of entitlement to any given area, as
claims by way of ancestry were contested by those claiming the same area under mana
tupuna.
(vi)
Retaining Territory – Ringa Kaha
The importance of ringa kaha, or the ability to hold territory against an aggressor was mirrored
by the great deal of mana ascribed to warriors within a group. In Nga Pakanga o Ngapuhi, Pene
sets out major battles that were engaged in by various factions of Ngapuhi. Several parekura are
also described by Re Te Tai in his evidence.443 These are mainly small skirmishes in which one
or two people were killed. Rarely, however, did these disputes escalate into full-scale challenges
441
442
443
R Te Tai in Karanga Hokianga, supra note 172 at 118.
P Te Rangaihi, ibid at 40.
R Te Tai, ibid at 70-85.
246
for territory. Neither did every defence of territory require a full-scale battle. Negotiation and
capitulation were always options, as evidenced by Moetara’s withdrawal from the north
Hokianga region.
In the Waihou/Whakarapa Hearings, several claimants speak about the encroachment of Ngati
Korokoro on to the land when Poroa took his people north to Ahipara. Although Re Te Tai
spoke of a conditional tuku being made by Papahia to Moetara, on the return of Te Rarawa many
years later, the warriors went back to the lands they had previously occupied. According to
Wiremu Rikihana, Whakarongouru of Ngati Manawa returned to Orongotea, which was densely
populated with Ngati Korokoro. When it was discovered that he was living on the land,
Moetara, the rangatira of Ngati Korokoro, sent for him to cross to Pakanae. After an exchange
of greetings, Whakarongouru is reported to have been welcomed with the words: “Haere mai e
kara, ka tae mai ano koe te tangata, i te whenua”444 (Welcome back old man, you have returned,
the man on the land). In the Waireia Hearings, nine years later, this interchange is described by
Rikihana as, “Friend you are returning to your own soil, and to your own land. Those in present
occupation must leave it.” Moetara instructed his people to leave the area and Whakarongouru’s
people from Ngati Manawa then returned to their former homes.445
The situation was different however, when Te Tihi, another Ngati Korokoro leader, refused to
leave the land and was killed by Hongi Hika at Mataraua Pa. The land was declared tapu by
Ngati Korokoro and abandoned. When Moetara later referred to the death of Te Tihi as
establishing a legitimate basis for Ngati Korokoro to claim the land, Muriwhenua of Ngati
Manawa is reported to have replied, “who told your tupuna to come and die on my land”.446 The
trouble that began with verbal insults being traded then developed into a symbolic struggle for
authority, manifested by the setting up and destruction of rahui and boundary markers signifying
the mana of the two rangatira. Matters steadily deteriorated until Moetara tricked Te Hikutu into
plundering the ship of Clendon in 1833, and then used it as justification for attacking Ngati
Manawa. A battle was fought at Motukauri at which several people were killed. Moetara ended
444
445
446
W Rikihana, ibid at 44.
Ibid at 36.
R Te Tai, ibid at 92-93.
247
the fighting by firing his gun and he and Muriwhenua hongi’d and cried over each other.
Muriwhenua instructed Ngati Korokoro to hurry and gather their dead because Ngaitupoto, the
iwi to whom Ngakahuwhero belonged, would soon be pursuing them. After this, Whatia and the
other brothers of Ngakahuwhero from Ngaitupoto moved on to the land to protect their sister and
their nephews from harm. Fighting continued, until three years later when Moetara crossed to
see Papahia and returned the land to Ngakahuwhero, Papahia, Te Tai and Te Hira.447
In this example, the treachery of Moetara and the insults of Muriwhenua led to a battle which
dissolved into an emotional display of affection between warriors after the battle. The mutual
respect and affection can be explained in terms of their close whakapapa links and their
obligations of whanaungatanga. Neither rangatira desired major killing amongst their people,
although neither seems to have stepped back from the opportunity to prove their prowess by
engaging in physical combat.
The desire to extend one’s territory into that of a neighbour was often the cause of pakanga. In
the generations before Te Reinga, there had been continual fighting on the land in Hokianga.
According to Re Te Tai, during the time of Te Reinga and his cousin Ngawha, Te Wairua of
Ngapuhi, (the father of Auha and Whakaria) came to challenge Te Reinga for possession of the
land. In the ensuing battle Paraparatahi was killed by Te Wairua. Te Wairua then returned
inland to Taiamai. When he got to Waima he sent for Ngati Hurihanga to come and assist him to
defeat Te Reinga. Ngati Te Reinga waited for their arrival at Takapuna. The group included
Niwa, Te Kuri, Te Ngawha, More and Te Huakioterangi. Te Wairua was killed in the ensuing
battle. Later, a battle was fought in which Tanemitirangi was killed to settle the score and that
ended the matter.448
Sometimes when groups combined to take on those holding mana whenua, members of the
attacking party were caught and taken prisoner. That would signify an end of the fighting and
peace would be made by the rangatira. The prisoners would then be released and allowed to
return to their own group. An example of this is given in the Hokianga Hearings regarding a
447
448
R Te Tai, ibid at 93-97.
Ibid at 70.
248
battle, which began over resources, but then escalated into a contest to establish who possessed
the predominant mana rangatira out of Ngati Te Reinga and Ngapuhi.
The initial facts are straightforward. The rangatira, Ngatamawahine, who held the tikanga of
Rotokaakahi and Te Awaroa areas toward Whangape, had established a rahui over the whenua
and sea. Another rangatira, Te Puaha, was disappointed that he could not eat the seafood and
called on Papau of Ngapuhi to kill Ngatamawahine so that the land would be left vacant for him.
In the ensuing battle Papau was defeated. He was conveyed by waka, dying from his injuries,
back to Hokianga. On the way his blood mixed with the waters of the sea and Tokowha and
other rangatira from Ngapuhi, placed a rahui on the sea. The rationale here is that the blood of
the rangatira, Papau, had mingled with that of the sea, infecting it with his mana and tapu.
Therefore the area had been made temporarily unfit for humans. Ngati Te Reinga and
Ngaitupoto, who held the mana over that area of the sea, heard, and sought revenge for this
attempted usurpation of their authority.
Tungutu was a member of the group who fought and defeated Ngapuhi in the ensuing battle.
Several of the Ngapuhi leaders were taken captive, including Tokowha, who was later released.
Tokowha remained aggrieved at having been captured. Years later, when Te Tungutu was an old
man, he was carried on a litter into battle to encourage his warriors. Tokowha was fighting on
the other side. Having being defeated yet again, Tokowha was making his farewell speech
before being killed. Tungutu asked his people to carry him to the front line, where he uttered his
words and jumped forward to hongi Tokowha. That act saved Tokowha’s life and peace was
finally made between the two groups.449
No kona ka kii a Te Tungutu: “E te whaanau, mauria atu au hei whakahau riri ma koutou”. Ka kauhoatia a
Te Tungutu. Titiro ana Tokowha kua mate ia, katahi ka karanga: “Haere mai e Panguru,haere mai e
Papata, haere mai e Te Reinga.” Me tana karanga ano e: “E Tamara ma, ee, kia ora au.” Ka tata atu ka
meatia kia tukua ki raro a Te Tungutu. Ka kii a Te Tungutu: “E te whanau, nukuhia, kia piri, kei roa te
kawenta i te riringa.” Ka kii a Te Tungutu kia tukua ia ki raro. Ka tatu a te Tungutu ki raro, me tana toko.
Ka puta tana kupu: “Whiitii, whiitii, tataa, tataa”. Ka peke a Te Tungutu ka u te ihu ki a Tokowha, ka
449
Ibid at 83-85.
249
whakarorangia. Ka hoki mai a Tokowha, ka mutu te ngakau o Te Puaha, tae noa mai ki a Papau. Ka
houhia ki te rongo e Te Tungutu.
English Translation
Then Tungutu said, “Whanau, take me (as an excuse) to cause battle for you”. So Te Tungutu was carried
on a litter. Tokowha saw that he was beaten, so he called “Welcome Panguru, welcome Papata, welcome
Te Reinga”, and he called again “Men let me live”. As they neared, they were told to let Te Tungutu down.
Te Tungutu said “whanau shift closer together so the burden cannot be seen so easily”. Te Tungutu said to
let him down, and when he was let down, with his walking stick, he uttered these words, “Whiitii, whiitii,
tataa, tataa”. Tungutu jumped forward and pressed noses with Tokowha, and he was saved. Tokowha
came back, the yearning for Te Puaha ceased, right down to Papau. Peace was made by Te Tungutu.
This interchange highlights the personal aspect of mana being used to atawhai enemies by
preserving life, as opposed to the administrative role associated with land administration, or the
general warrior aim of diminishing mana. The action of Tungutu is one of benevolence and
recognition shown by one warrior toward another of equal status. It also demonstrates the
authority of the warrior rangatira. In performing this action at a time when Tokowha was ready
to be despatched, Tungutu acknowledged him as an equal and gave him back his mana, thus
clearing any past grievances and permanently ending the matter.
(e)
Conclusion
Mana was an important substantive constituent of all things, which waxed and waned over
time. The mana of individuals within a group, Mana Tangata, was ascribed first to lineage
and then to behaviour that protected and strengthened the group’s image and
welfare. Mana Tupuna attached to ancestors and was a legitimate basis for claiming land
entitlements within a group’s territory.
Mana Whenua, although a modern term, can be aptly applied to the traditional relationship
between people and their lands. Unoccupied land could be acquired by establishing one’s
mana on the land and reinforcing it with occupation. Once acquired in this way, the
disposition of entitlements within the group became the job of those who exercised mana
rangatira. In the Papatupu Hearings for Waihou/Whakarapa this traditional mana was
250
challenged by junior members of the group, when trade opportunities shifted Maori society
from subsistence level agriculture to a trade economy.
Raupatu was another means of acquiring territory by diminishing the mana of the existing
group and replacing it with that of a new senior lineage on the land. In practice, raupatu were
rarely ever complete annihilations of a group, as members of the original group often
remained in occupation under the mana of the new rangatira.
Although different views have been expressed about whether boundaries existed between hapu
and iwi in other areas of Aotearoa/New Zealand (see Durie's views supra at pages 41-42), the
evidence provided in the Papatupu Hearings clearly establishes that the setting of boundaries was
important for several reasons. In areas where disputes over territory had arisen between
neighbouring groups it demarcated resources. It was also important in the extension of mana
once a raupatu had taken place. Boundaries assisted with the retention of territory, but
competition for resources meant that groups had to be ever mindful of encroachment on to their
territory. Over time boundaries were adjusted by rangatira to reflect changes in group
composition, strength and resource needs.
The use of mana within Maori society was not a haphazard drive for individual power. It
was a means of upholding the principles of whakapapa and whanaungatanga and creating
an ordered society based around kinship, obligation and land.
251
5.
(a)
TAPU
Introduction
According to Maori epistemology, all qualities and states of existence derived from the
wairua via the atua. “Tapu” highlights descent from the wairua as providing a divine
quality that is inherent in all things. As such it is a natural quality attaching to a person,
place or thing. It is often likened to the idea of “sacredness” in a religious sense.
The idea of inherent “sacredness” reinforced the value associated with individual identity.
In a society where sharing between members of a whanau was the norm, inherent tapu
allowed people to recognise individuality and the privacy and exclusiveness necessary to
protect it. From birth to death, every aspect of life was accompanied by some form of
tapu, personal or external, violation of which could lead to serious consequences for the
violator. These consequences were of both a spiritual nature, based on the belief systems
of Maori spirituality, and temporal.
Tapu was used to isolate things considered important and of value to members of a group,
by treating them as possessions. The items to which tapu attached could be viewed either
as an individual, whanau, or group possession. The difference between the two is a matter
of degree rather than numbers. The principle of whanaungatanga ordering generally
extended , “I” to mean “me and my whanau”, and “mine” to mean “mine and my
whanau’s”.
In a jural sense, tapu was a substantive concept, which, together with mana, was
employed to flesh out the relationships that were structured according to a whakapapa
and whanaungatanga framework of thinking. The ideas associated with the concept of
tapu are privacy, exclusiveness and that all things have inherent value in the wider
scheme of things. Used as a jural principle of Maori custom law “tapu” gave rise to
“protected” relationships and controlled behaviour through recognition and
acknowledgement of varying degrees of restrictedness.
252
In this part of my study I will examine the way tapu was used as the basis of Maori
“property”450 relationships. The term “property” is very broadly applied here to cover a
series of important relationships between people and things, which were upheld by a
group, and the breach of which could attract serious penalties, including death. There are
three types of protected relationships identifiable in the Papatupu Hearings; They are ––
personal relationships of a private nature, between individuals and the objects with which
they came into close contact; information that was considered important and of great
value to the group but restricted to certain people, and restrictions placed upon natural
resources within the group territory, in order to exclude outsiders.
(b)
(i)
Tapu and the Formation of Property Relationships
Extending Personal Tapu to other Things – Tapu and Mana Tangata
All members of Maori society possessed tapu as part of their inherent makeup. The
extension of this personal tapu to external things could make those objects “belongings”,
and as such, off limits to others. Not everything a person touched became “theirs”. Not
every person could extend sufficient tapu to external objects so that they became
dangerous to others. The degree of personal tapu attributed to an individual was directly
related to the seniority of their whakapapa lineage, and to the mana attributed to the role
they occupied within the group. Rangatira and Tohunga were attributed greater tapu than
others within the group during their lifetimes and were, in some cases, treated as
“untouchables”.
Tapu and mana mirrored each other, in that the greater the mana of a person, the greater
his or her tapu and vice versa. This use of tapu as the “authority” aspect of mana, in the
formation of human property relationships, is distinguisable from other uses of tapu, such
as rituals enacted to seek abundance in gardening and other activities. These latter were
450
I use the term “property” to refer to a relationship between a person or persons and an object, that is recognised
by others within a group, and the interference of which is likely to attract some form of penalty to the person(s)
interfering and their whanau.
253
spiritual processes aimed at invoking the good will of the atua, in order to encourage
success. The former were practical measures for allocating resources and reinforcing
them with spiritual and physical sanctions.
a.
Extension of Tapu to the Personal Belongings of Rangatira
Those with senior lineage were sometimes considered so tapu that anything they touched
became infected with their tapu and dangerous to others. The consequences of this
affected every interaction that these people had with others. Several examples of this are
given in the Papatupu Hearings:
Re Te Tai related how a woman wore clothing belonging to Te Koiuru, a woman of
senior lineage who was the wife of Papahia, a Hokianga rangatira:451
Ka kakahuria te kakahu o te wahine a Papahia, o Te Koiuru, i roto i era ra, he mea tapu tena mea.
Ka haere te rongo kua he te wahine a Papahia. Ka ngakautia e Papahia kia tikina, kia patua te iwi
ra, mo te kakahutanga o te kakahu o tana wahine. Ka panga tana ngakau ki a Manga raua ko Te
Tahua. Ka haere mai te ope a Manga raua ko Te Tahua, ka tae ki Whangape, ka pupuhi atu i tenei
taha o te awa, ka pupuhi mai tera i tera taha. Ka tu a Manga raua ko Te Tahua, ka mate. Ko te
Kiripapa kaore i mate.
English Translation
A person wore the garment [probably a cloak] of the wife of Papahia, of Te Koiuru, and in those
days the wearing of another’s garment was tapu [prohibited]. Papahia heard that his wife had done
wrong. He wanted to punish those people for wearing the clothing of his wife. He conveyed his
wishes to Manga and Tahua. The ope of those two men came to Whangape and started shooting
from this side of the river, and the other side was returning the shots from their side. Manga and
Tahua were killed but not Kiripapa.
Tapu provided spiritual protection to the possessor, in this case Te Koiuru. It was
commensurate with her mana as having been born of senior lineage. The personal tapu of
451
R Te Tai in Karanga Hokianga, supra note 172 at 85.
254
those with strong whakapapa was so intense that it transferred to whoever or whatever
they touched. Their personal garments were considered “tapu” and were only to be
handled by selected relatives and servants. Those who wore the garments of such a tapu
person placed themselves in jeopardy. Not only were they considered to be spiritually
endangered by coming into contact with the personal tapu of a rangatira, but it also
brought temporal retribution as well, as evidenced by the battle fought over the wearing
of Te Koiuru’s cloak. Clear details of the cause and outcome of the offence are not
clearly stated in the information given in the Papatupu hearing, and the relationship
between the protangonists is also not clear. Given the location, it is likely that they are
closely related to each other. If such a relationship existed, then the principles of
whakapapa and whanaungatanga would come into play once blood was let and local
rangatira would intercede to settle the matter.
Although couched in the words of “tapu”, the punishment meted out to those who
violated personal tapu by an unwarranted touching of a rangatira’s person, or possessions,
can also be seen as a device for protecting one’s personal integrity from violation, and as
a means of signifying ownership of personal effects.
Te Tai and Te Hira are the two main rangatira in the Whakarapa/Waihou region in the
late 1800s. Of the two, Te Hira is reputed to have been the more compassionate. When
Te Hira was giving his ohaki he asked for “his book” and presented it to Re Te Tai, as his
successor, with the words:452
Ko te rua tena o aku taonga mou. Ma tena pukapuka koe e whakatangata. Kei roto katoa o tupuna.
Ko nga whenua katoa e tika ana, i o tupuna, kei roto”. He tapu taua pukapuka i tena wa. Ka mahue
iho tona mana ki au. Engari, kua nui ke aana korero ki au i mau atu. Kua kite hoki ia, kaore a Te
Tai e mea ana i au, hei tangata, ko Pere ke tana e pai ana, hei tangata. I muri tata i ena korero aana,
ka mate.
English Translation
452
Ibid at 102.
255
This is my second taonga for you. Let that book make a man of you, all your tupuna are in that
book. All the whenua have been put right by your tupuna who are in there. That book was very
tapu at that time. He left his mana to me. But he had said many other things before that. He [Te
Hira] could see then that Te Tai was not in favour of making a man of me, his preference was
Pere. Just after those words of his, he died.
The Book contained important whakapapa information about the tikanga on the land. Te
Hira was both a rangatira and tohunga. He was passing his personal possession over,
permanently, and publicly, to Re in order that he be better able to fulfil his role as
rangatira. In Maori terms it was a “tuku” from one rangatira to another. A parallel in
English legal terms is donatis mortis causa, where the donation of a gift is made when
death is imminent, and in fact, occurs. However, in this instance the term “tapu” relates
to the importance and nature of the contents of the book being presented to Re Te Tai. It
contained details of whakapapa and whenua, two of the most prized possessions of Maori
society. That information was not only extremely valuable it was also restricted
knowledge, symbolic of the rangatira class. The information would assist Re Te Tai in
the role he was to assume after Te Hira died, as rangatira responsible for organising the
tikanga on the land. Hence the words of Te Hira that it would enable him to make a man
of himself. When Re Te Tai says that the mana of the book was transferred to him he is
referring to the increased power he would gain through using the knowledge contained in
the book.
b.
Extension of Tapu to Things Touched by a Tohunga
While most of the evidence in the Hokianga Hearings clearly demonstrates that rangatira
and others shared all tasks relating to the wellbeing of the group, including gardening, Re
Te Tai recalls how the intense tapu of Te Hira prevented him from participating in
manual labour:453
E rima tekau pea nga tangata o Te Hira i te wa e ora ana ia. Ko ratou ki te mahi kai. Ko nga
mahinga a tena tangata a Te Hira, e tino nunui. Whai hoki he tangata atawhai ia ki te tangata. Ka
453
Ibid at 107.
256
mutu ka mahi huihui ano ratou ki Te Totara, ara, a Muriwhenua ma. Ko Te Tai anake te mea e
mahi ana. Ko Te Hira kaore i mahi, hoiano, ana kai mahi kai, ko ana tangata a aamii haere na.
Kei tana tapu i pena ai. Kei tana rangatiratanga tetahi take i noho tahaki ai ia.
English Translation
There were about 50 people whom Te Hira had during the time he was alive. They grew the
food/tended the gardens. His gardens were very big, because he was an atawhai person to people.
They also all worked together at Te Totara, that is, Muriwhenua and others did. Te Tai was the only
one who worked. Te Hira did not work, all his workers were people who gathered kai. The reason for
that was that he was so tapu and that his rangatiratanga standing caused him to stay on the side.
The implication here is that Te Hira was so tapu that he dare not touch the garden lest the
whole area become infected with his personal tapu and therefore off-limits to everyone
else. This indicates that Te Hira had taken on the role of Tohunga, or spiritual guardian
for the people, which, together with his senior lineage would have made his personal tapu
extremely great. By way of comparison, Te Tai, who was the elder brother, as the
administrator of the land, generally worked alongside his people in the gardens and was
known to be a very hard worker.
A modern example of maintaining the sanctity of the person of the rangatira is related by
Hinerangi Rapihana454, who, as a young girl in the 1920s, held the bowl of water from
which her grandaunt, Marama Moetara, washed, when she visited Pukepoto, near Kaitaia.
According to Hinerangi, her grandaunt was a tohunga from Te Wai o Te Marama, in
South Hokianga. It was Hinerangi’s job, as a junior relative, to attend her grandaunt
when she was outside her own territory by acting as her “tonotono” or servant. Once they
returned home to Hokianga, her grandaunt would eat with her relatives and attend to her
own needs. When I asked whether this made Hinerangi a “pononga”, or servant, she
replied that as a close relation, her role was defined by kinship and carried out as a
privilege in accordance with family affection and pride, it was not that of a person
without dignity and honour, as being a “pononga” would indicate.
454
Interview with Hinerangi Rapihana at Kaitaia on 6th February 2005.
257
c.
Tapu and Individually “owned” Food Resources
Gardening was an important activity in the Hokianga region and several heads of families
had large gardens, which were the personal property of their whanau. Heremia Te Wake
related how Irihau, who was a member of Ngati Manawa, came to Waihou from
Oruaanui and said to Te Tihi of Ngati Korokoro: “Kua kainga taku riwai”, “I have eaten
my potato crop”.455 According to Heremia a crop of potatoes was “he mea tapu hoki”
very tapu in those times and were not spoken about openly or bragged about. In response
to this statement, Urekuri, the son of Te Tihi, speared Irihau in the thigh. Te Tihi
defended Urekuri’s action. Irihau returned to his own people, and the event was relayed
to them and to his Ngapuhi relations, adding further strain to a relationship between the
groups that was becoming increasingly hostile.
In this instance “tapu” is used to signify the importance of the root crops grown by Maori
in pre-European times to ensure their economic welfare. Whether “riwai” refers to
“potatoes” or is used generically to represent all root crops is not clear. If it does mean
potatoes, then this incident occurred post-contact and indicates an extension of the value
attributed to kumara and taro to an introduced root crop. It is an example of
incorporation and indigenisation of the new into the old.
The statement indicates that the crop belonged to an individual, Irihau, and his whanau,
rather than to the community as a whole. In this sense, Irihau has exclusive possession of
his riwai and is entitled to eat them without sharing. The implication here is that he has
done just that.
However, the response to Irihau’s words from Urekuri and Te Tihi, shows that bragging
about one’s good fortune was not well tolerated in pre-European Maori society.
Although there was no obligation on the owner to share, people who ate their food
without sharing were held morally culpable for selfishness and bragging could produce
455
H Te Wake in Karanga Hokianga, supra note 172 at 11.
258
serious consequences for the perpetrator, which others felt were well deserved. In this
instance Te Tihi, as rangatira, did not intervene to chastise or punish his son, thus being
seen to have upheld his son’s actions.
In each example above, tapu conveys an association between an individual and an
object/s that is recognised within Maori society as belonging exclusively to that person/s.
They are Irihau’s potatoes and he has eaten them; the clothing belongs exclusively to Te
Koiuru and is not to be interfered with by others; the book and the information it contains
is Te Hira’s and he is passing it to Re Te Tai for his sole use. That there are punishments,
both spiritual and temporal for those who breach the relationship between person and
object is evidence that “privacy of possessions” and “exclusivity” existed in preEuropean Maori society.
d.
Birth and Death of a Rangatira
Extention of personal tapu also occurred at the place where a rangatira was born. The
idea was that the mana of the person by virtue of their lineage was so great that their tapu
passed into the land.
According to Re Te Tai, Te Reinga’s place of birth, was considered tapu by his
descendants:456
Ka whanau a Te Reinga. Ko Te Totara tona kawa, i whanau ia ki reira. No reira mai ano, i tapu ai, a,
tae noa mai ki naianei, engari kua oti te whakanoa i naianei e nga pirihi, he totara taana kawa. Ka tupu
a Te Reinga, ka riro i a ia te mana o te whenua katoa nei, kaore he tangata i tae ki runga i tenei whenua.
English Translation
456
R Te Tai, ibid at 74. According to Cleve Barlow, the leaves of the Totara were used by Te Reinga in the
performance of rituals as part of his rangatira duties. Personal communication, at Kaikohe, 9 May 2005.
259
Te Reinga was born. The Totara was his kawa, he was born there. It was tapu from that time right to
this day, but it has been made whakanoa now by the priests, a totara is his kawa. When Te Reinga
grew up he took the mana of the entire whenua, no other person came on to this whenua.
There are eight generations between Te Reinga and Re Te Tai. During that time the tapu
of that land had endured, making the place that he was born off limits to other members
of the group. Because Te Reinga is the main ancestor for this land, the mana and tapu of
the group was focused where he was born, by later generations. This also ties in with the
principle of mauri, as it focuses the spiritual lifeforce of the group in a particular area.
This part of the group domain was respected and protected by all its members, preventing
common usage. It would remain under the administrative control of those who held mana
rangatira and upheld by ensuring it remained vacant. According to Re Te Tai, the tapu
had only recently been lifted, making the area freely available for use by members of the
group. Why, and by whom is not stated. Given the strong Christian influence within the
area, it would have been by a christian priest, possibly accompanied by a tohunga, as a
symbolic gesture signifying that the former mana was now lifted and the tapu cleared
from the area.
In the Waireia Hearings, Ngakuru Pene speaks of the tapu that attached to the place
where the whenua, or afterbirth, of a rangatira child is buried, and the consequences of
inadvertent trespass:457
The navel cords of Whaiakau and Takakuru were buried at the foot of a karaka tree. In
consequence of this the tree was made tapu and named Te Pihepihe. This tree grew at Te Peke.
Sometime subsequent to this, the Ngapuhi attacked my ancestors at Wairoa and Te Peke.
Manguungu and Te Parewa led the Ngapuhi. Te Paenga at that time was living in his pa at Te
Piriwai, which is at Te Peke. It is near Waikapu.
The karaka tree I have mentioned was in sight of the pa, and Te Paenga saw invaders gather the
fruit from it. He desired his sons Raraku and Whakaririka to attack these persons. They crept
457
N Pene, Waireia Hearings, supra note 175 at 156.
260
forward, and when near enough, charged. Manguungu and Tarewa were in the tree. They were
captured and killed …
In this instance the state, or condition of tapu, had been imposed on the karaka tree,
restricting access to its fruit. The tree would not have been climbed by local children, or
its fruit eaten. Children would have been told at an early age that the tree was “tapu” and
off limits. They and may or may not have been told the reason.
Tapu could also be extended to land where an important ancestor was killed. The
rationale in this case is that the blood and lifeforce of the person had become linked by a
traumatic event, to that of the land. The joining produced a state of “tapu” in which the
emotions of the people and those of the land had become fused. The idea that the land
also suffers is present in Auha’s words that “both land and people shall die”,458 reputedly
uttered before he and Whakaaria subjected the Waitangi area to raupatu. Heremia Te
Wake also explains that when Hongi of Ngapuhi and his taua attacked Mataraua Pa and
killed the Ngati Korokoro rangatira, Te Tihi: 459
Ka mate nei a Te Tihi, ka mahue tenei whenua, kaore he tangata, ka tapu hoki …
When Te Tihi was killed, the whenua was left with no people on it and was tapu …
Pire Teira, a member of Ngati Korokoro and Ngaitupoto, who was a claimaint in the
Waihou/Whakarapa Hearings, elaborates further on the incidents surrounding the death of
Te Tihi.460
I a Te Angaora, ka timata mai te mana, me te whakatu rahui ki nga tahataha naka, ka mate atu ia.
Ka riro i a Te Haunui te mana. Ka mate a Te Haunui, ka riro i a Te Anga te mana. Ka mate a Te
Anga, ka riro te mana i a Te Tihi. Ka mate a Te Tihi ki Mataraua pa, me tana iwi katoa, ka takoto
tapu te whenua nei, a, ka riro i a Mauwhena te mana, me te kai whakahaere i te tapu o te whenua
nei. No te matenga o Te Tihi, ka waatea te whenua nei. Ko nga morehu i ora i te patunga atu i
458
459
460
H Piripo, Okuratope Hearings, supra note 255.
H Te Wake in Karanga Hokianga, supra note 172 at 14.
P Teira, ibid at 58.
261
Mataraua pa, i noho ki Nukupure, ki Wairoa, ki Ngarongotea i timata mai te tapu i Matamata,
Waihou, Whakarapa, a, i mutu mai te tapu i Matawera. I te wa i mate ai a Te Tihi, i Pakanae a
Mauwhena e noho ana. I runga i ena mana katoa ki runga i tenei whenua, me te mana hoki o tena
whakatapunga, kaore rawa he tangata i tae mai ki te whakakorikori, mo runga i te korenga atu o te
iwi e kiia nei, ko Te Rarawa. Hoiano taku e maatau ana, ko te tunkunga mai o te whenua nei e Te
Rarawa ki a Ngati Korokoro.
English Translation
From Te Angaroa the mana started, and the establishment of protected areas to those sides and
then he died. Te Haunui took the mana. When Te Haunui died, the mana was taken by Te Anga.
When Te Anga died, the mana was taken by Te Tihi. When Te Tihi died at Mataraua pa, and all
his people, the land lay in a tapu state, and Mauwhena took the mana and the conducting of the
tapu of this land. From the death of Te Tihi this whenua was cleared. … The tapu began at
Matamata, Waihou, Whakarapa and the tapu finished at Matawera. At the time Te Tihi died,
Mauwhena was staying at Pakanae. On all those mana on this whenua and the mana too of that
place being made tapu, not one person came to disturb it in the absence of the people called Te
Rarawa.
In this korero the mana of Te Tihi and Ngati Korokoro is only three generations old.
When Te Tihi is killed the events are so traumatic that the survivors leave the area vacant,
but not abandoned. On leaving, a tapu state remains under which no other people are
permitted on the land. This state of restriction is enforced by the other Ngati Korokoro
rangatira, Mauwhena and Moetara. The clearing of the tapu on the land is related by
Teira:461
I te wa e tapu ana te whenua nei, ka kitea mai te ahi ko kaa ki roto o Whakarapa. Katahi ka tikina
mai, ka tirohia. Kei te taenga mai, ka kitea ko Wharetohunga. Ka riri a Mauwhena ka puta te
kupu; “Na wai koe i teka mau, e rere wawe mai te whenua nei, ma te ware?” Muri iho, i te mea he
uri a Wharetohunga no Tupoto, ka waiho e Mauwhena kia noho i te whenua nei. Ka hoki a
Mauwhena. Muri iho ka eke a Ngati Korokoro ki runga i taua whenua. Ka whakanoiaina hoki te
tapu toto. Ka mahi ki Matamata, ki Waihou, ki Whakarapa. Ka noho tuturu ano a Ngati Korokoro
ki taua kainga, whenua hoki. I muri iho i taua parekura, ko te ateatanga tena o te tapu e kiia ra “he
tapu toto no Te Tihi”. Koia tena ka eke na Ngati Korokoro ki runga i taua whenua.
461
P Teira, ibid at 59.
262
English Translation
At the time that this land was tapu, a fire was seen burning inside Whakarapa. So they went to
look. When they got here, it was seen to be Wharetohunga. Mauwhena became angry, he uttered
these words, “Who is it that urged you to fly so soon, for a person of low social position?” Later,
as Wharetohunga was a descendant of Tupoto, Mauwhena let him stay on this whenua.
Mauwhena went back. Later Ngati Korokoro came on that whenua. The tapu blood was made
noa. They worked at Matamata, at Waihou, at Whakarapa. Ngati Korokoro stayed permanently at
that place, that whenua. After that massacre, that was the clearing of that tapu that is being quoted
“tapu blood of Te Tihi”. That is why Ngati Korokoro came on to that whenua.
There is a conflict in the evidence relating to the presence of Ngati Korokoro on the land.
Heremia Te Wake says Ngati Korokoro came on to the land because Te Rarawa left to go
to Ahipara and took everyone with them, leaving the land empty. Pire Teira says that a
tuku of the land was made to his ancestors when Te Rarawa left the land to go north. Re
Te Tai speaks of a conditional tuku being made, so that if Papahia and others were killed
in battle then the land was to pass to Moetara of Ngati Korokoro.462 They did return
however, and according to Re Te Tai, Muriwhenua responded to Moetara’s land claims
based on Te Tihi’s death, with “na wai koe i mea atu, kia haere mai ki runga i toku
whenua, mate ai?” (“who told you to come on to my land and die”)?463
Other areas were set aside as tapu because rangatira were killed there. Te Hira Mataika
of Waihou stated that Te Rauparaha was killed at Kowhatuhapai following which, “no
reira ka rohea taua wahi hei tapu” (“therefore that place was set aside as tapu”).464
Te Papa was set aside as “tapu” because of the death of Te Ngawha there. 465 Later this
land was cleared of its tapu and a tuku was made to the descendants of Ngawha by Re Te
Tai’s grandmother, Ngakahuwhero.466
462
463
464
465
466
R Te Tai, ibid at 77.
Ibid at 92.
H Mataika, ibid at 38.
Ibid.
R Te Tai, ibid at 91.
263
In all these instances it is the joining of the blood of the rangatira with the land that is
significant. His or her mana and tapu have become linked to the land at that place. Often
relatives of the deceased would approach those who carried out the role of mana rangatira
and ask if they could have the land in order to maintain an ancestral link to their relation.
If they were made tuku of that area, they would become part of the community. If they
later left the land it would revert back to the control of those with mana rangatira.
Even when death was by natural means, as a sign of respect for the passing of a great
personage, and in recognition of his or her mana, a tapu state would be placed on
resources for a short period of time.
According to Re Te Tai, when his father, Te Tai died, a 3 year tapu was placed on the
sea:467
Kaore he iwi i ngaro i tona matenga, me nga rangatira katoa poto mai. Ka kawea ia ki Pureirei i
tona tanumanga. I tana matenga ka tapu te awa o Waihou. … Ka whakanoa ia hoki te tapu o te
awa nei e Rawiri, e Te Waharoa, e Hori.
English Translation
There was not one iwi who did not attend his death. All the rangatira came. He was conveyed to
Pureirei to be buried. When he died the river of Waihou was made tapu. … The tapu of the river
was cleared by Rawiri, Te Waharoa and Hori.
Re Te Tai says that Te Huakioterangi died at Whirinaki. When he was conveyed to the
wahi tapu it was as with Te Reinga. He was laid to rest at Te Totara:468
Ka tapu te moana o Whirinaki. Kaore i mohiotia he aha te take, i te mea, e mohio ana te iwi kei
nga maunga ke ra a Te Huakioterangi e takoto ana, kaore, kei Te Totara ke nei e takoto ana. No
467
468
Ibid at 102 and 109.
Ibid at 119.
264
tana hahunga ka tikina mai, me Maui hoki, ka hahua atu i Rahirahi, ka maua ki Whirinaki. Kei
reira e takoto ana.
English Translation
The sea of Whirinaki was made tapu. I do not know why, because the iwi knew that Te
Huakioterangi was lying in the mountains and not at Te Totara. When he was exhumed he was
brought back, and Maui as well, was exhumed from Rahirahi and brought to Whirinaki. They rest
there.
This indicates that tapu was usually placed on an area near where the body lay at rest. In
this case it appears to have been purposely placed elsewhere, for reasons unknown to Re.
The above examples illustrate a sequence of events in which tapu originates from a
human source and then infuses another object, or land, to produce a “state of tapu” on the
affected object/land. This state, or condition is acknowledged and reinforced by the
rangatira in his role as mana rangatira and accepted by other members of the group. It
can be nullified by the actions of those with the requisite mana. Once this is done the
resource, or affected object, returns to its prior “common” “un-tapu” state of existence.
(ii)
Tapu associated with Wahi Tapu or Burial Grounds – Mana Tupuna
In all the Papatupu Hearings, tapu was associated first and foremost with the burial
places of ancestors. The details of where the bones of ancestors were interred, who the
specific ancestors were and who was responsible for conveying the bones to those places
was important knowledge which in itself was considered “tapu”. In this sense “tapu”
refers to restricted information of great value, held by certain rangatira, but not available
to members of the group generally. In the eyes of the Papatupu Committee members
hearing claims, as well as amongst the claimants themselves, lack of knowledge of burial
places significantly undermined an applicant’s case. Sometimes there was a debate
between claimants as to where particular ancestors were lying, and to which families
particular burial grounds belonged.
265
Re Te Tai recited a comprehensive list of the old wahi tapu and the various ancestors who
were buried in each one. I include it to show the precision with which rangatira knew the
associations between their ancestors and the territorities they occupied. The recitation
illustrates several aspects of tapu. First, the personal connection between the group and
its land strengthened over time as more bones were laid to rest inside the territory they
occupied. This gave authority to the principle of mana tupuna. It also shows that tapu
were imposed by other rangatira as a mark of respect for the passing of significant
members of the group.469
Ko Pukepoto taku wahi tapu tuturu. Ko Kohinemataroa te tupapaku tuatahi i takoto i reira. No
kona ka rere tona wairua ki Te Reinga, koia Te Reinga maunga, me Te Reinga tangata. Muri iho
ka takoto ko Matauturangi ki reira. Muri iho ko Te Reinga ka takoto ano ki reira, i mate ia ki taua
pa i Pananawe. Ka mate a Te Reinga ka korero nuitia, kia rongo te iwi e kawea ana ko Otaia a Te
Reinga takoto ai. No te waenganui po, ka mauria a Te Reinga, ka whakapungia he kakahu ki tana
takotoranga, kia meinga ai kei reira ano a Te Reinga e takoto ana. Ka ahua te mau, ki Pukepoto.
Ka hoki mai ano te kai-kawe na, ka kauhoatia ko nga kakahu ra, kia kite mai ai te iwi, koia tenei
ko Te Reinga. Katahi ka kauhoatia ki Otaia, mahue atu ke reira, ka hoki mai nga tangata. Kei te
whakaaro pena te tangata, e, kei Otaia a Te Reinga e takoto ana. Te take i penatia ai, he mea kei
whakakinoa te tinana o Te Reinga, e aana hoa riri. Ko Rakeiti, no mua atu i a Te Reinga i mate ai,
a, i takoto ia ki Mataraua, ite wa i kai mataa ana, he mea hanga ki te atamira. Ka nui nga tupapaku
i takoto ki Mataraua, i muri i a Rakeiti. I kite au i nga kurupopo o te atamira o Rakeiti, na toku
matua i tohu ki au. No te hahunga, ka kawea ki Pukepoto.
Ka mate Taimihitata ki Whakarapa, ka takoto ki Pukewharariki, me etahi atu o Ngati Te Reinga, o
Te Rarawa, i takoto ki Pukewharariki. Ko Houmea he wahi tapu no Ngati Te Reinga, no Te
Rarawa, i te wa i a ratou e noho ana i Whakarapa. No Ngati Te Reinga, no Ngati Te Ao, no Te
Rarawa, nga wahi tapu katoa i Whakarapa. Ko Taimihitata te tupapaku i hahua mai i
Pukewharariki ki Pukepoto, kia takoto huihui ai ratou ko nga tungane.
Ko Manihi, i takoto ki Pukewharariki, me Te Hauauru, me Te Whitu. No muri nei pea ka takoto o
Heremia tupapaku, ara, aana e korero nei. Engari noku tuturu ena wahi tapu, no mua iho, no te wa
mai ano i nga tupuna. Ko Nahareta Parikarauna, noku tuturu, no Te Uriaranui. Ko nga tamariki a
Manawa i takoto tuatahi ki tena wahi tapu. No muri nei ka kawea a Wharetohunga ki reira. Ko
469
Ibid at 117.
266
Putawhakarere, te ingoa o tena wahi i mua, ko te rori tonu hoki tena ki te kainga o Te Hira. No te
waihotanga na hei wahi tapu, ka mahue tena rori. Ko Hotene te kai tiaki o tena wahi tapu.
Ko Te Ruapounamu, ko Te Kuri, nga tupapaku mutunga ki Pukepoto. He mataku te tapu mutu ai
te kawe tupapaku ki reira. Katoa tena maunga, Te Uriaranui anake, ena wahi tapu. Ko Papanui he
wahi tapu no Ngati Te Reinga, me Te Matapihi, me Te Koropiha, me Otaia. I takoto ki kona nga
rangatira katoa o Te Rarawa, e Te Waaka, e Nopera, me etahi atu, ka hahua atu ki raro. Ko
Whanganamu, he wahi tapu ano no Ngati Te Reinga. Ko Ngarangi i takoto ki reira. I tapu katoa
te moana nei i tana takotoranga ki reira, i Oruangongoro te mutunga mai o te tapu. No tana
tangohanga atu ka whakaterea ki Te Raupo, katahi ano ka noa te moana nei. I tana tarenga ki
reira, ka tapu tera moana. No te maunga ki roto o Waihou ka noa taua moana.
Ko Motukauri, he wahi tapu noku. Ko Te Huakioterangi i takoto tuatahi ki reira. Muri iho ka
hahua ki Te Awapuru, i tahaki mai o Te Huaa. Na Te Huakioterangi i whakapani nga iwi katoa
nei, koia i penatia ai tana takoto. Muri iho, ka tangohia ki Te Pukepoto, ka tuturu tona takoto ki
kona, tae noa ki naianei. Ko Opapango he wahi tapu no etahi o nga uri o Tangirau. Ko Te Ao, uri
kotiro a Te Huakioterangi, i takoto noki ki reira. Ko Whangapatiki, he wahi tapu no Haaiti, me
tana kotiro i takoto ano ki kona, me Ture, i takoto ki reira. I takoto noki Kaumatua, me aana
tamariki ki taua wahi tapu o Haaiti na. Na toku whaea i tango a Haaiti ma, me era tupapaku i Te
Pane o Haaiti, me o Opapango. Ka poto mai, ka whakatakotoria ki Whangapatiki. Ko a Puriri i
tango ai ko aana matua, me aana teina. Muri iho ka mauria aua koiwi i Whangapatiki, ka kohia ki
tetahi puta, he puriri i Ohapehape, koia a Puriri. Muri iho ka maua mai i reira ki Waihou, ki
Whakarapa, me Te Ruakooiwi, ka riro katoa mai, i Matawerea, tona wahi tapu. Ka riro mai aua
koiwi, ka mahia e au nga rakau o Ohapehape. E mataku ana hoki te tangata ki te mahi, i te tapu.
Kotahi rakau i mahia e au i runga i taua wahi tapu, he mea naaku kia noa ai. Hoiano aku wahi
tapu e mohio ana au o reira, o Whangapatiki. No te wa i hoko whenua ai te pakeha hei manuiua,
ka whakaaro toku matua kei hokoa hoki aua koiwi nei, koia i mauria mai ai ki konei. Me i kaua
tena take, e kore e maua mai, ka waiho tonu atu i reira takoto ai. Me nga tupapaku o enei wahi, na
Te Tai i mea kia whakarapopototia mai, ki te aroaro o nga tangata, i runga ano i taua take. Me o
Whakarapa tupapaku i maua katoa iho ki raro nei takoto ai i runga i te wehi, kei waiho he
manuiua.
English Translation
Pukepoto is my permanent wahi tapu. Kohinemataroa is the first tupapaku who lay there. From
there her wairua flew straight to Te Reinga, hence Te Reinga mountain and Te Reinga the person.
Later, Matauturangi lay there. Later, Te Reinga lay there, he died at Pananawe Pa. When Te
267
Reinga died, there was much talk so as everyone could hear that he was being conveyed to Otaia
to lie. In the middle of the night, Te Reinga was taken away and clothes were stuffed in the place
where he had lain to make out he was still there. They made straight for Pukepoto. The carriers
came back, and the bundle of clothes were carried on a litter so as the people could see that this
was Te Reinga. They carried the litter to Otaia, left it there and the people came back. Everyone
thought that Te Reinga was lying at Otaia. The reason that was done was so the body of Te
Reinga would not been interfered with by his enemies.
Rakeiti died before Te Reinga, she lay at Mataraua at the time and was placed on a platform for
the birds and insects to clean. There were many tupapaku who lay at Mataraua after Rakeiti. I
saw the rotten timber of the platform of Rakeiti, my matua pointed it out to me. From the hahunga
she was conveyed to Pukepoto.
Taimihitata died at Whakarapa, she lay at Pukewharariki, and some others of Ngati Te Reinga, of
Te Rarawa lay at Pukewharariki. Houmea is a wahi tapu belonging to Ngati Te Reinga, and Te
Rarawa, during the time they were staying at Whakarapa. All the wahi tapu at Whakarapa, belong
to Ngati Te Reinga, to Ngati Te Ao and Te Rarawa. Taimihitata was the tupapaku who was
unearthed at Pukewharariki at Pukepoto, so they could all lie together with their tungane. Manihi,
Te Hauauru and Te Whitu lay at Pukewharariki. It was later perhaps that the tupapaku of
Heremia, according to his talk, lay there. But these were my permanent wahi tapu, from before,
from the time of nga tupuna. Nahareta burial ground is mine permanently, belonging to Te
Uriaranui. The children of Manawa lay at the wahi tapu first. It was after that Wharetohunga was
conveyed there. Putawhakaerere was the name of that place before, as that was the very road to
the house of Te Hira. When it was left as a wahi tapu, that road was abandoned. Hotene was the
kai tiaki of that wahi tapu.
Te Ruapounamu and Te Kuri were the last tupapaku to lie at Pukepoto. Being afraid of the tapu
was the reason they stopped conveying tupapaku to there. The whole of that mountain right
around to the side of Whakarapa, belonged to Ngati Te Reinga, Te Rarawa and Te Uriaranui
alone. Papanui was a wahi tapu belonging to Ngati Te Reinga and Te Matapihi, and Te Koropiha
and Otaia. Poroa, Moetara and Papahia lay there. Just recently, all the rangatira of Te Rarawa, Te
Waaka, Nopera and some others went and disinterred them. Whanganamu was a wahi tapu too
which belonged to Ngati Te Reinga. Ngarangi lay there. The whole sea was declared tapu when
he lay there, up to and including Oruangongoro. When he was taken away he was hung up at Te
Raupo, which made the moana noa. When he was hung there, that moana was tapu and when they
took him to Waihou the moana became noa.
268
Motukauri is a wahi tapu of mine. Te Huakioterangi lay there first. Later he was disinterred at Te
Awapuru, at the side of Te Huaa. His death made all that iwi orphans, that is why he was laid like
that. After that, he was taken to Te Puketoro, where he was permanently laid, right down to this
day. Opapango is a wahi tapu belonging to Timunga, to the side on top of Te Pane o Haaiti, a
wahi tapu belonging to some of nga uri of Tangirau. Te Ao, female descendant of Te
Huakioterangi, lay there also. Whangapatiki was a wahi tapu being to Haaiti and his daughter and
Ture both lay there. Kaumatua and his children lay there too at that wahi tapu of Haaiti.
My mother took Haaiti and other tupapaku from Te Pane o Haaiti and Opapango. When they were
all done they were laid at Whangapatiki. Puriri took his maatua and his teina. Later the bones
were taken to Whangapatiki and put into a hole, a puriri at Ohapehape, hence Puriri the name.
After that they were brought from Matawera wahi tapu to Waihou, to Whakarapa, and Te
Ruakooiwi. When the bones were brought over, I worked the trees of Ohapehape. People were
frightened to work there as it was so tapu. I worked on one tree on that wahi tapu so it could be
made noa. Those are the only wahi tapu I know of there, of Whangapatiki.
At the time that the Pakeha was buying the whenua for manure, my matua was afraid that those
bones would be sold too, that is why he brought them here. If it was not for that reason they
would not have been brought over and would have left them lying there. And the tupapaku of
these places, Te Tai said to assemble them in front of the people on that same basis. The tupapaku
from Whakarapa were all brought down here to lie in the fear that they would be left there as
manure.
Re Te Tai is from Ngati Manawa. According to Re, Heremia Te Wake’s tupuna came on
to the land with Te Tihi, as “hairs on his legs”, or relatives of Te Tihi.470 Included in this
group is Te Matangi, from whom Heremia is claiming land rights. By way of contrast, in
terms of tikanga, the local knowledge contained in this recitation alone, singles out Re Te
Tai as the person possessing mana tupuna.
470
R Te Tai, ibid at 118.
269
(iii)
Tapu as an Administrative Device for Regulating Resource
Relationships
a.
Authority to Impose “tapu” States on Resources – Mana Rangatira
A person with the requisite mana of rangatira or tohunga status could declare something
“tapu”, thereby taking it out of common usage and placing it under the control of specific
individuals or groups. This process enabled resources to become the “property” of a
group, or of specific individuals and whanau within the group. There are numerous
examples of resources being set aside in this manner via the mechanism of establishing
rahui. In each case the rangatira relied on the institution of tapu, backed by mana, to
reserve the resources of an area for the exclusive use of his people. This was done either
by agreement with other rangatira to settle disputes over territory and resources, or
unilaterally, by erecting pou or posts, as territorial markers signifying “ownership”.
These actions were not merely an assertion of mana, backed with the threat of physical
force, they were a systematic use of established procedures for allocating resources using
the institutions of mana and tapu to signify “ownership” claims via the establishment of
“rahui”, or areas reserved exclusively for group or whanau use. Outsiders who trespassed
on these resources were subjected to both spiritual and physical penalties. Spiritual
penalties were a powerful deterrent in pre-contact Maori society, where a strong,
uncontested, belief system existed. Physical penalties imposed by members of the group,
are easier to understand as a universal response to incursions on one’s territoriality. The
fact that retribution could be shared by the entire whanau and was intergenerational,
made the sanctions extremely broad and far reaching.
i.
Trees
According to Heremia Te Wake, the karaka trees were an important taonga, in the
Hokianga area. When all the white pine had been felled and people were looking to fell
Puriri, he sealed off the trees by placing a boundary around them and notified others of
270
his action at a hui, so that no one would break the “ture” or “law” that he had established.
That closed the area and no more work was done on those trees.471 In this evidence, the
term “tapu” is not used by Heremia, even though his actions are consistent with the
establishment of tapu over a resource. His authority is assumed by the compliance of
others with his words. Re Te Tai, however, challenges this authority, stating that
Heremia’s tupuna are not “tuturu” to the area. Thus, he accuses Heremia of asserting
mana in territory where others held greater claims.472
ii.
Huke Roi
Tapu was also attached to huke roi, or fern root, to reserve it for the exclusive use and
exploitation of members of the group. Re Te Tai says “tena ano etahi mea e tapu ana i a
ratou kupu, ko a ratou huke roi”, “that was something else that was made tapu by their
words, their huke roi”. 473 This is in the context of a wider discussion about which
rangatira could establish rahui, and the binding force of their word on other members of
the group:474
Hei a rahui e a ratou kupu, ena wahi katoa. Timata mai i a Te Reinga, tae noa mai ki oku matua
nei e tapu tonu ana aua wahi. Ma Te Tai raua ko Te Hira e mea kia keria aua roi, ka keria. Whai
hoki, ki ta raua korero, kaore tetahi tangata i pokanoa te ko i nga roi o nga wahi e korero ake nei
au.
English Translation
A rahui was established over all those places by their word. From Te Reinga down to my parents
those places remained tapu. If Te Tai and Te Hira said to dig those fernroot they were dug.
Following that, according to their word, no person would trample the words attaching to the
fernroot of those places I speak about.
471
H Te Wake, ibid at 29.
See discussion of Mana, earlier in this Section, particularly under the headings of (b) Mana Tangata and (c) Mana
Tupuna and (d) iii. g. Challenges to Mana Rangatira.
473
R Te Tai in Karanga Hokianga, supra note 172 at 66.
474
Ibid.
472
271
He describes the different mahinga kai, the individuals to whom they belong and the
communal cultivations that were shared by everyone:475
Ko etahi o a ratou kai he roi. Kei Whangapatiki tena huke roi, ahu atu ki te taha ki Ohapehape. E
kore e keria noatia ena roi, e tapu ana hoki i a ratou kupu. E kore e toua nga rahurahu.
English Translation
Some of their food was roi. The roi excavations were at Whangapatiki and towards the side of
Ohapehape. They would not just dig up the roi, it was made tapu by their word. The bracken
would not be set on fire.
The rahui that were set in Waihou, Whakarapa, Motuti and Whangapatiki were of very
long duration, and held over successive generations:476
… ko nga rahui ano a o raua tupuna, a o raua maatua, kua mate atu ra. He mea rahui ki aa raua
kupu, nga roi o Whangapatiki, tapu katoa i a raua, me Otupahero, me o Pokopoko, me o Oruaanui,
i tapu katoa i a raua, me nga manu o Whakarapa, e kore e pokanoa te tangata ki te pupuhi.
English Translation
… these were the same rahui as their tupuna, and of their maatua, who have long since died. The
rahui was placed on the strength of their word, the rootcrops of Whangapatiki were all made tapu
by them, and Otupahero, Pokopoko and Oruaanui were all made tapu by them, and the birds of
Whakarapa, which no one would dare to shoot without authority.
iii.
Areas of sea
Areas of the sea were made tapu, so that others would know that those areas were part of
a group’s territory and to warn against the taking of resources. According to Re Te Tai,
475
476
Ibid at 87.
Ibid at 97.
272
the area of the sea that Te Reinga had set aside was made tapu by him, but outside of that
area others were free to lay claim:477
Ko Ngati Rangitinia e noho ana ki Poporete i taua wa. I tena wa e rahui ana nga mea o te moana,
o te whenua nei i a Taaoi raua ko Maraewhiti. Ko tenei taha e tapu ana i a Te Reinga. Ka hiakai a
Hinerangi tuarua ki te mohimohi, ka tono ki te tane kia haere mai ki konei, mea ririwai ai, he mea
ika. Ka hoe mai a Rangihimamao raua ko to raua pononga, ka noho ki Pohaturoa. I to raua taenga
mai, kei Punehu a Taaoi raua ko Maraewhiti e noho ana i tena wa. Ka kitea te paoa o te ahi ka
haere mai a Taaoi ma. Kei runga i te puke na ka kite i te waka e maanu ana, ka heke iho. Tae iho
e noho ana a Rangihimamao i te taha o te moana nei, katahi ka patua hei utu mo nga mohimohi o
Pohaturoa. I te kitenga mai o te pononga ra, ka huti i te punga o tana waka, e hoe ana. Kaore au i
rongo i arumia te waka o te pononga ra.
English Translation
Rangitinia was staying at Poporete at that time. At that time the things of this sea and this whenua
were under rahui of Taaoi and Maraewhiti. This side was made tapu by Te Reinga. Hinerangi the
second was hungry for mohimohi, she sent her man to come here, to set poles for netting.
Rangihimamao and his pononga rowed over and stayed at Pohaturoa. When they got there, Taaoi
and Maraewhiti were staying at Punehu at that time. The smoke from their fire was seen and
Taaoi and others came. From the top of the hill they saw a waka floating, so they descended and
saw Rangihimamao sitting by the sea. He was killed to pay for the mohimohi of Pohaturoa eaten
by Hinerangi. When the pononga saw that, he pulled in the anchor of the waka and began rowing.
I did not hear that the waka of the pononga was chased.
Each group seems to have been responsible for enforcing its own rahui.
b.
Rahui and Territoriality – Tapu and Mana working together
Rahui were a principal means used by rangatira as a means of establishing claims to
resources, and of settling any resultant disputes.
477
Ibid at 86.
273
Re Te Tai relates how the aggravation between Ngati Manawa and Ngati Korokoro
escalated in the late 1700s and early 1800s, as increasing numbers of Ngati Korokoro
moved from South Hokianga on to the land in North Hokianga. At that time Muriwhenua
was an important rangatira of status from Ngati Manawa and Moetara was the principal
rangatira of Ngati Korokoro. Muriwhenua established a rahui on the river of Matamata in
order to precipitate a dispute with Moetara. Moetara rowed over to Motukauri and Te
Tongatonga and dug a ditch to mark the area and set down a barrier between the two
groups. Muriwhenua sent his people to fill it in. Moetara dug another ditch and
Muriwhenua filled it in once more. This test of relative mana happened twice without
physical combat. Later on, Moetara’s son was making a waka out of the trees of Te
Huaa, which was part of the disputed area. Muriwhenua sent people to break the waka.
He then put a rahui on the trees and the whenua as well, in order to prevent Ngati
Korokoro from working the trees.478
Ko te ingoa o tena rahui, ko Nga Puhoro o Muriwhenua, he kauri. Ko tena rahui, he paahi i a
Ngati Korokoro, kia kaua e mahi i nga rakau. No kona ka tapu nga mea o tena whenua, e kore te
tangata e tae ki te mahi i tetahi mahi.
English Translation
The name of that rahui was Nga Puhoro o Muriwhenua, a kauri tree. That rahui was to prevent
Ngati Korokoro from using the trees. From that time the things on that whenua were tapu, no
person would go there to do any work.
That the principles of mana and tapu acted in concert to produce rahui, is clearly made
out in the Hokianga hearings by all the speakers. Re Te Tai says:479
I te wa e ora ana a Te Tai, ko ia te kai-rahui i nga kukupa o te whenua nei, ko raua tahi ko Te Hira,
i te wa e ora ana ia. Ko Wi Tana te kai-rahui i nga manu o te whenua nei i te wa i a matou nei, ara,
ko nga wahi e kitea ana, e whai mana ana, ka rahuitia, mate noa. Te tamaiti a Wi Tana, i tahuri ki
te moana, ko Te Whareoneone. I tahuri ki waho ake o Toungarangara nei. Ka rahuitia te wahi i
478
479
R Te Tai, ibid at 93.
Ibid at125.
274
tahuri ai tana tamaiti, ka whakatapua, mai ano i roto o te awa o Waihou, puta noa mai ki te wahi i
tahuri ai tana tamaiti, me konei katoa i tapu. He roa e tapu ana ka whakanoangia ano e maaua. Ko
tena ahua o matou, i timata mai ano i nga tupuna ra ano.
English Translation
At the time that Te Tai was alive, he was the kai rahui of the pigeons of this whenua, the both of
them, he and Te Hira at the time he was still alive. Wi Tana was the kai rahui of the birds of this
whenua during our time, that is, the places where it was seen that there were manu, it was rahuitia
until he died. The son of Wi Tana, Te Whareoneone, overturned at sea. He was overturned
outside of Toungarangara. A rahui was placed on the place where his son overturned, then
whakatapua right from inside the river of Waihou, right to the place where he overturned, and all
of here was tapu. It was tapu for a long time before it was made whakanoa by the two of us. That
way of ours started right from our tupuna.
In this korero, Re is speaking about two different applications of tapu and rahui. In the
first application concerning pigeons, tapu is used as the basis for claiming ownership of
resources of high economic value, by the group. He identifies his father and uncle as
being responsible for delineating entitlement to the birds of the area during their time.
When they died that role passed to Wi Tana, and not to Re Te Tai as part of his own
rangatira role. This exemplifies the sharing of responsibility on the land between those
who held senior whakapapa lines and mana tupuna on the land. In the second, tapu is
recognition of the spiritual contamination of a resource owing to the death of an
important relative at sea. A rahui is imposed in order to give the resource time to reestablish its equilibrium. That Re Te Tai and Wi Tana set the rahui jointly and that it was
imposed for “a long time”, indicates that Wi Tana’s status and lineage is equal to that of
Re Te Tai on the land.
In the Waireia Hearings, Heremia Te Wake relates another use of “rahui” as being to set
boundaries between different group territories. He says that a boundary between Waihou
and Waireia was recently established by Wiremu Tana and Te Tai, which gave rise to a a
dispute arose over trees in the following generation:480
480
A Pukeroa, Waireia Hearings, supra note 175 at 147.
275
These were the kaumaatua of these days. Included on the side of Te Tai were Orikena. I heard of
timber quarrels at Raukawa. The elders on one side were Wi Tana, Tamaho, Rikihana and
Winiata, and, on the other were Te Hira, Te Tai and Te Orikena.
The trouble arose out of the place where the timber was, being a wahi tapu. It is on Waireia. The
timber was felled and squared by Te Tai and Te Hira and others. When the other party heard of it,
they interfered. This took place in the time of Papahia. The work went on, in spite of objections.
Papahia and his party went away, and Papahia composed a lament to commemorate the occasion.
The advent of new opportunities to commericially exploit resources after colonisation,
stretched the application of traditional mechanisms of controlling the rate and volume of
interference with those resources beyond their earlier boundaries. In this dispute the
elders are set out on one side as all being from Te Rarawa, while the other side is Ngati
Manawa. However, the two groups are very closely related and the Waireia area where
the dispute took place was occupied by both groups. Te Tai, Te Hira and Papahia are all
men of rank in terms of Whakapapa. That the matter is settled by the composition of a
song recording Papahia's disapproval rather than by physical combat, is in accordance
with their social status and rank.
c.
Tapu following Raupatu
In the Papatupu Hearings for the Te Tii, Mangonui, Waimahe area, Aperahama Parangi
relates how the a tuku of Takou was made by Auha and Whakaaria to their nephew Toko,
after they had engaged in a successful raupatu of the the prior occupants, Rangitane and
Ngati Pou. Hotete, who was the son of Auha, disputed the tuku to his relation and a
competition ensued for dominance over the area.481 Hiramai Piripo relates that when
Toko established a rahui, Hotete took it down and erected his own symbol. Toko, in turn
dismantled it and replaced it with a shark. Hotete took it down and replaced it with his
own shark. Toko then dug a ditch to signify the line across which interference would not
481
A Parangi, Te Tii Mangonui Waimahe Hearings, supra note 181 at 51.
276
be tolerated. Matters worsened until they settled it finally by trial by combat. Toko
gained supremacy and Hotete conceded the territory and returned inland to his own area.
d.
Wahi Tapu as a Source of Land Entitlement
In deciding on whose entitlements to the areas of Waihou and Whakarapa were “tika”,
the Papatupu Committee confirmed that the wahi tapu in the Waihou area belonged to Te
Reinga and Te Reinga’s descendants only. Heremia Te Wake’s ancestors were more
recent immigrants who had been granted tuku under the mana rangatira of the
descendants of Te Reinga. The Committee held that Te Wake’s ancestors did not possess
mana rangatira in this particular area, although his ancestors had been buried alongside
those of te Reinga’s line.
Ancestral connections to specific areas were probably the most important evidence that
an individual could raise in claiming land entitlements within a rohe. This made
knowledge of wahi tapu vital. In the Waireia Hearings Herewini Te Toko, son of Te
Toko, was established as the main claimant by the other claimants and the Land Court.
He relied heavily on knowledge of wahi tapu in his evidence:482
My father, Te Toko was a man possessing mana. After his marriage he still retained a leadership,
and had the control of proceedings. It was when he married Kiriwehi that he came to Te Peke. He
was not a descendant of Ihengaiti, but he was a descendant of Ngono.
Ihengaiti was born at Te Peke and died there. She is buried at Otangihia. Tangiawa was born at
Te Peke and reared there. She died at Te Peke and is buried at Otangihia. Te Hoe was born and
reared at Te Peke, and is buried at Otangihia. Koangi was born at Wairoa and reared there. When
she married Te Toko she lived at Te Peke. The kainga of Hoe and his children was at Okahu in
Wairoa, close to Te Peke boundary.
Herewini possessed senior whakapapa on his father’s side, but that line was not directly
linked to the area he was currently claiming. The korero indicates that when he moved to
482
H Te Toko, Waireia Hearings, supra note 175 at 99.
277
Te Peke, his father came under the mana of his mother, Kiriwehe. Kiriwehe had strong
whakapapa links to Te Peke, which were derived by direct descent from Ihengaiti, the
modern ancestor for the area, and which linked further to Moetonga, the originating
ancestor. Independently, Herewini Te Toko claimed another area of Waireia, Pupuwai,
through his father’s ancestor, Ngono.
Rangatira were rarely interred where others might easily find them. Their remains were
concealed in places where they could not be easily located and desecrated by their
enemies in an attempt to diminish the mana of the group. The precise location was kept
secret by making the general area tapu. In this way the opportunity for accidental
discovery was also lessened considerably.
In establishing land entitlements, knowing the location and contents of wahi tapu
demonstrated a durable link to the land that had been maintained and strengthened over
time. This idea is encapsulated in the principle of “ahi kaa” or keeping the home fires
burning. In measuring “ahi kaa”, time is viewed in terms of human life spans, as
generational. In this way of determining time, the terms “tuakana” and “teina” refer to
older and younger generations, as much as to senior and junior whakapapa lineage. Over
time, as more and more relations were returned to the land, the claim of their descendants
strengthened. It entitled one to a share in the resources held by the ancestors, and a say in
how those resources were to be deployed. It also placed a responsibility on descendants
to protect the ancestral remains and the places where those remains were held. The
principal instrument for achieving this was by invoking the institution of tapu and placing
rahui over areas.
Wahi tapu evidence does not feature very strongly in areas that have been taken by
raupatu because they have not had time to build up an ancestry inside the land.
Sometimes the remains of ancestors were carried from other places to lay in the new
278
territory that a group was settling. In the Matawaia No. 1 Block hearing, Komene Perepe
says that:483
Ko tenei hapu o N. Tikiriahi tino hapu whai mana ki tenei whenua ki Matawaia i raro i te mana
raupatu.
I te wa e noho ana a te Aitu ma i te Araroa ka mate a ratou nei tupapaku, ka takoto ki te Araroa.
Ko te tangata 1 i takoto ki taua wahi ko Tama, tae noa mai kia te Paetoka, kei reira e takoto ana,
tae mai ki etahi onga tamariki a Eru Waikerepuru kei reira e takoto ana.
I te taima ka tukua a Kapurahoru kite riihi ka kii a Kohumaru me Eru Waikerepuru me etahi atu,
kia tangohia mai nga tupapaku ote Rere, katahi kohikohia kia kotahi takotoranga ka tahi ka
tangohia ka keria he poka, ki taua wahi kite Araroa tuahu rawa kite kohatu e takoto na i tenei
taima. Kei taua wahi kei te Araroa.
English Translation
This hapu of N. Tikirahi was the true hapu with mana on this land of Matawaia under the mana of
conquest.
At the time Aitu and others were at Araroa if anyone died they lay at Araroa. The first man who
laid there was Tama, Paetoka also lies there, right down to some of the children of Eru
Waikerepuru, they lie there as well.
At the time Kapurahoru was allowed to lease Kohumaru, Eru Waikerepuru and others said to bring
the bodies from Te Rere. They gathered them together in one place, then they brought them, dug a
hole at Araroa and marked it with a stone. It rests there to this time, at Araroa.
Transplanting one’s tupuna was one means of consolidating entitlements to the land.
However, the main challenge to newly established mana tupuna, came from the older line
that remained on the land after the raupatu had taken place.
Because the objective of the land hearings process was to translate title into freehold land
tenure, the hierarchy of entitlement between those claiming raupatu, and those claiming
483
H Taui, Matawaia Hearings, supra note 400 at 27.
279
through mana tupuna was not fully explored, and current occupation was given stronger
recognition than it might otherwise have had, if tikanga had been fully enforced.
In the Okuratope Block, Waimate North Hearings, wahi tapu claims were also of recent
origin and reliance was primarily on extinguishment of the prior mana under raupatu,
rather than consolidation through ongoing ancestry in the whenua. The Papatupu
Committee questions the absence of ancestral burials of those who claim raupatu of the
area. There are disputes over who lies in the burial ground at Hoanga. Auha and
Whakaaria, who were responsible for the raupatu, both went back to lie with their
ancestors at Wharepaepae, their principal wahi tapu in another area. During cross
examination, a challenge is made by Taniora Te Korohunga,484 who claims that Auha and
Whakaaria lived at Okuratope under the mana of their wives, Pehirangi and Aniwa, two
sisters who were the daughters of Tawakehaunga, the local rangatira from Ngati Pou who
had carried out a raupatu on the land. This claim, if upheld, would make Auha and
Whakaaria the in-laws of Whitirua and others under whom Korohunga is claiming and
would have strengthened his own entitlements. The Committee found that there was no
battle by Tawakehaunga for Okuratope as stated by Taniora Te Korohunga.485
e.
Removal of Tapu
Just as tapu could only be imposed by someone with the requisite mana to do so, it had to
be removed in the same way. Although karakia generally accompanied the lifting of
tapu, these hearings focus on the actions of rangatira and the force of their
pronouncements. There are only oblique references to the words they used to lift tapu.
Re Te Tai tells how the tuakana were all sent for to come and work on the trees of the
wahi tapu at Te Koropiha and Raupo.486
484
T Te Korohunga, ibid at 47.
Ibid at 106.
486
R Te Tai in Karanga Hokianga, supra note 172 at 103.
485
280
Ka timata te mahi i nga rakau o Te Koropiha, me Raupo, ka tono atu i nga tuakana kia haere katoa
mai ki te mahi i nga rakau o to ratou wahi tapu. Ko te taha ki tua tenei wahi ka mahia nei. Ka mea
tera hunga, e kore ratou e tae mai ki te mahi, he wahi tapu hoki no o ratou tupuna. No kona ka
mahia e Te Tai ma, me to raua nei hapu. Ka oti te mahi, ka hokoa ki te pakeha. He torutoru nga
rakau i riro, he whakanoa kau ano i taua wahi tapu na.
English Translation
When they began to work the trees at Te Koropiha and Raupo, they sent for their tuakana to all
come to work the trees of their wahi tapu. The side beyond this place was worked. Those people
said they would not come to work as it was a wahi tapu of their tupuna. From then, Te Tai and
others of that hapu, worked the trees. On completion of the work, it was sold to the pakeha. Just a
few trees were sold just to free the wahi tapu.
The lifting of tapu in this instance was done by people in order to free the land for
common usage, so that they could take advantage of the commercial opportunities that
were now available. It is reinforced by Re Te Tai when he describes “working the trees
of Ohapehape” after the bones of his ancestors were removed from the areas of
Whakarapa, Waihou and Ruakooiwi:487
Ka riro mai aua koiwi, ka mahia e au nga rakau o Ohapehape. E mataku ana hoki te tangata ki te
mahi, i te tapu. Kotahi rakau i mahia e au i runga i taua wahi tapu, he mea naaku kia noa ai.
English Translation
When the bones were brought over, I worked the trees of Ohapehape. People were frightened of
course to work, it was so tapu. I worked on one tree on that wahi tapu so it could be made noa.
While the practice of placing and lifting tapu was fluid enough to allocate the use of
resources and accommodate new post-colonial commercial opportunities, even in the late
1800s, when christianity had taken a strong hold in the Hokianga, it still took the actions
of a rangatira to signify to others that the land was free from tapu and could be worked on
without spiritual harm accruing to oneself or one’s family.
487
Ibid at 118.
281
The importance of ritual in the lifting of tapu was also highlighted in the Waireia
hearings. When referring to the abandonment of land after Te Tihi’s death, Wikitera
Reone Ngaruhe says:488
I know of abandonment of land by the people from Whakarapa, to the coast, and that it was then
occupied by Ngati Korokoro. I heard of lands being made tapu through the death of Te Tihi.
Wharetohunga may have removed the tapu but in so far as it refers to the coast lands, it was
Moetara, a chief of Ngati Korokoro who removed the tapu.
This provides affirmation that a rangatira was required to officially lift tapu. An ordinary
person working the land was not sufficient. This is backed up by Heremia Te Wake’s
evidence in the same hearing that the group’s mana remained on the land after the death
of their rangatira:489
All the people left Waihou and Whakarapa after the fighting, and not one of them remained
behind. I think the whole of the land, as far as the Coast was unoccupied because the mana
belonged to Te Tihi.
Once again, the inference is that only a person of mana could negate the tapu imposed
after the death of a rangatira, and that actions alone would not suffice. The duality of
mana and tapu as two principles acting in unison is a feature of tikanga Maori in both
laying and removing tapu. Working together, “mana” can be described as the active,
positive aspect of “tapu” which gives tapu its force, while “tapu” is the latent, passive
aspect of “mana” which gives it its authority.
(c)
Conclusion
The above examples show that there are two ways that tapu operated within Maori
society. The first was as an extension of the personal tapu that everyone possessed. One
488
489
WR Ngaruhe, Waireia Hearings, supra note 175 at 134.
H Te Wake, ibid at 68.
282
could extend this tapu to personal possessions so that to say that something was “tapu”
was to say that it was owned in the sense that it was “mine”, or more accurately “ours”.
The second way that tapu was used is as an extension of the first idea but with a more
overt reliance on mana for effectiveness of implementation. Using words, ritual and
symbolic actions, a “rangatira” or “tohunga” with the requisite mana, could impose a
state of tapu on other things. In this way they could regulate relationships between
members of the group and the resources available to different individuals for their
whanau. In other words, they could formulate property relationships. The ability to
“tuku” and the ability to impose states of tapu, were the foundation on which “mana
rangatira” relied. Together, they enabled rangatira to carry out their main administrative
role of ensuring that the tikanga on the land was maintained.
Traditional applications of imposing and removing tapu were broad enough to
accommodate the new commercial opportunities offered by timber trading. In this area
Tapu was removed to allow exploitation of trees and to free up commercial trading.
283
WAHANGA TUAWHA – SECTION D
TWO MODERN CASE STUDIES
NGAWHA GEOTHERMAL HEARINGS 1992-1993
AND NGAWHA PRISON HEARINGS 2002
284
Location Map 3
NGAWHA GEOTHERMAL CLAIM
Source: Waitangi Tribunal, Ngawha Geothermal Resource Report, 1993, x.
1.
INTRODUCTION AND BACKGROUND
In this Section of my thesis I examine Maori evidence presented in two major hearings
concerning Ngawha Springs, an area located within the central Tai Tokerau region, and
the protection provided in these hearings to Maori interests under New Zealand law.490
Ngawha Springs is an area that was traditionally used as a crossing place for Maori
490
See Location Map 3, above.
285
traveling from the east coast areas discussed in Section C, to the Hokianga region. The
first set of evidence is taken from the Ngawha Geothermal Claim Hearings,491 which
discussed ownership and rangatiratanga of the geothermal resource under the land at
Ngawha and its outlying areas. The area was estimated by the Waitangi Tribunal as
being between 25 and 50 square kilometres. The second set of evidence was presented
by Maori in local government and court hearings relating to applications for resource
consents for the building of a prison at Ngawha.492 The hearings are 10 years apart. My
primary purpose in examining this evidence is to identify the ways in which the
principles of Whakapapa, Whanaungatanga, Mana and Tapu have altered in content and
application in the past one hundred years.
During the past 100 years, the context within which the principles of Whakapapa,
Whanaungatanga, Mana and Tapu operate has changed dramatically. In the timeframe
covered in Section C, Maori were speaking about a context in which broad claims to
territoriality amongst hapu were still the norm and Maori rangatira authority in regulating
relationships within that territory was still strong. In this Section, territory, land and
people are no longer under total Maori control. An English-sourced, New Zealand legal
framework clearly sets the outer parameters for the discussions taking place and Maori
rangatira authority has diminished considerably. Furthermore, technological
advancements have radically altered the manner and extent to which humans are able to
measure their relationships to natural resources. Rights to resources have become more
defined and fragmented, with multiple interests in single resources being provided for
under New Zealand law.
491
Waitangi Tribunal, Ngawha Geothermal Resource Report – WAI-304, Brooker and Friend, Wellington, 1993.
Applications by Minister of Corrections to Northland Regional Council for Resource Consents, Decision, 15
March 2001, Commissioners N Farnsworth, P Majurey. (“NRC Decision”)
Shayron Lee Beadle and Others v Minister of Corrections, Environment Court, Decision no. A074/2002, Judge
Sheppard. (“Environment Court Decision”)
Friends and Community of Ngawha Inc v Minister of Corrections [2002] NZRMA 401. Wild J. (“High Court
Decision”)
492
286
(a)
The Ngawha Geothermal Hearings – Waitangi Tribunal 1992-1993
In the Geothermal Hearings, Maori claimed that Article two of the Treaty of Waitangi
guaranteed “ownership and rangatiratanga” of geothermal resources as a “taonga”493, of
Ngapuhi hapu.494 “Ownership” is an English common law concept, which, at its
broadest, enables a range of exclusive entitlements to be claimed with regard to an object,
including the taking of possession, use, control, access, enjoyment, transmissibility, and
receipt of capital derived from the object.495 “Rangatiratanga” or chieftainship, is a
Maori term derived from Maori custom law. It was viewed by the geothermal claimants
as being analogous to, but greater than, “ownership” when applied to natural resources. It
also included the authority to determine all matters relating to and affecting the resources
enjoyed by rangatira and their descendants. As a Maori custom law term, “rangatira” acts
as a symbolic reference point for the placement of authority or “rangatiratanga”, in much
the same way as “owner” acts as a symbolic reference point for the authority that gives
force to the incidents of ownership. The difference between the two is that historically,
rangatiratanga has been exercised within the constraints of a custom law system that
recognised and upheld responsibilities to the kin group, while “ownership” within an
English common law context has developed around ideas of private, individualistic and
exclusive relationships between one person and the thing that is the object of the claim of
ownership.
In the Geothermal Hearing it was established as a fact that the Maori interest in the
resource, part of which had later been acquired by the Crown in the late 19th Century, had
been cared for by Maori, mai raano (since memory) and up to the present time.
493
“Taonga”, are things of value to Maori. The term has been defined in successive Waitangi Tribunal claims as
extending beyond tangible objects to include te reo Maori, the mauri or life force of an object, and the mana of a
group. The Waitangi Tribunal described taonga in this case as “[including] any material or non-material thing having
cultural or spiritual significance for a given tribal group”, WAI 304 at 20.
494
See Appendix 1 – Text of Te Tiriti o Waitangi and Kawharu Translation.
495
Honore, “Ownership” in AG Guest, Oxford Essays in Jurisprudence, Oxford University Press, London, 1961,
107.
287
The Ngawha Geothermal claim was brought by the trustees of Parahirahi C1 Maori
reservation on behalf of ten hapu of Ngapuhi. The claimants were concerned that a joint
venture between the Tai Tokerau Maori Trust Board and the Bay of Islands Electric
Power Board, to exploit the geothermal field for electricity generation, had reached the
stage where resource consents under the Resource Management Act 1991 were being
sought. They claimed that the grant of resource consents allowing exploitation of the
resource, without their consent, would breach their ownership and rangatiratanga
rights.496
The three main questions the Tribunal investigated were:497
1.
Whether the Crown had breached the principles of the Treaty of Waitangi
in acquiring the lands at Ngawha;
2.
Whether the statutory provisions of the Resource Management Act 1991
and the Geothermal Energy Act 1953 are inconsistent with the principles
of the Treaty of Waitangi, and if so,
3.
Have or will the claimants be prejudicially affected?
The answers to these questions were:
1.
The Crown failed to adequately protect the owners’ interests in the
Ngawha Springs area, as required by the Treaty of Waitangi. The
Tribunal recommended that a 4 acre block of land at the Ngawha Springs,
formerly held by Ngapuhi, be returned to Ngapuhi ownership;498
2.
The Geothermal Energy Act 1953 does not recognise any rights of Maori
in the geothermal resource or provide protection for Article 2 rights under
the Treaty of Waitangi. The Resource Management Act 1991 has
496
497
498
WAI-304, supra note 491 at 1-6.
Ibid at 6.
Ibid at 151, 154.
288
delegated extensive powers to local and regional authorities while
ensuring that they are not obliged to act in conformity with, or apply,
Treaty principles. The Tribunal recommended that the Resource
Management Act be amended so that all persons exercising functions and
powers under the Act “shall act in a manner that is consistent with the
principles of the Treaty of Waitangi”499 but this has not been implemented.
On the question of “ownership” and “rangatiratanga”, the Tribunal was of the opinion
that Nga Hapu o Ngawha had once owned the entire Ngawha land resource above and
below ground. However, the sale of the Block by Heta Te Haara in 1894 had completely
extinguished “any right of management and control or rangatiratanga over the surface
components of the geothermal system or the sub-surface components under the alienated
land in the block.”500
In this Section I do not examine the claims made under te Tiriti o Waitangi as a discrete
area of law. That would require an entire thesis on its own. I look instead, at the
arguments put forward by claimants, based on Maori custom law, and the protection
provided for those interests under New Zealand law. This approach enables me to
compare and contrast past and modern usage of custom law principles and identify
changes.
(b)
The Ngawha Prison Hearings
These Hearings also arose out of proposed activities requiring resource consent
applications under the Resource Management Act. However, whereas the activity in the
Geothermal Hearings had been a proposed joint venture by a local authority in
conjunction with a Maori organisation, this time the applications were made directly by
the Crown (the Department of Corrections) for earthworks necessary to build a Prison at
Ngawha.
499
500
Ibid at 153-155.
Ibid at 150.
289
In 1998, Trustees of a Maori land block in the area, Ngati Rangi Ahu Whenua Trust, most
of whom linked to the local hapu of Ngati Rangi, began negotiations with the Department
of Corrections to have a prison located on land awarded to their ancestor, Heta Te Haara,
by the Native Land Court in 1874. The negotiations foundered when a majority of the
owners, together with other hapu members and local residents, objected to a prison being
built at Ngawha. Discussions about locating the prison on Maori land were abandoned
and the Crown purchased adjacent land for the purpose of building the prison. In 2002,
six Trustees of the Ahu Whenua Trust resigned and a new group, Ngati Rangi Hapu
Development Committee, was formed which claimed to represent the views of Ngati
Rangi Hapu. This Committee continued working alongside the Department of
Corrections for the establishment of a prison in the area.
In the first instance, the Northland Regional Council refused to grant the resource
consents necessary for the required building works, on the grounds that the activities
would produce “adverse effects” on the relationship of tangata whenua with their
ancestral lands waters, waahi tapu and other taonga, and fail to enable tangata whenua to
provide for their social and cultural well-being.501 On appeal, the Environment Court
overturned that decision and granted consent.
In its findings the Environment Court stated that “claims about people’s attitudes, and
fears, however genuinely held, have to be assessed objectively, and if unsubstantiated by
factors properly cognisable under the Act, should not influence the decision.” 502 Judge
Sheppard saw the task of the Court as being to look for an “objective basis” for the
“attitudes expressed” in the testimony of the Maori witnesses. As a result, much of the
testimony of the objectors relied on by the Northland Regional Council Commissioners,
was held to be of no judicial significance. At later hearings, the High Court and Court of
Appeal also upheld the consent applications. The prison opened on 5 March 2005.
501
502
NRC Decision, supra note 492 at 12.
Environment Court Decision, supra note 492 at paras 724-728.
290
In this Section, I re-examine the principles of Maori custom law discussed in the
evidence, which the Regional Council considered persuasive in upholding the position of
the Maori objectors, and which the Environment Court held to be of little value to its
assessment under the Resource Management Act. The main reason for doing this is to
identify the strengths and weaknesses of a Maori Custom Law approach within a modern,
legal context. In this process, a concern emerges about the extent of understanding and
acceptance of Maori concepts and principles and the values that underpin them, in
Resource management decision-making. Are Maori concepts and principles legitimate
jural principles, or are they anachronistic devices of a quasi-jural nature from a bygone
age? How relevant are Maori custom law principles in the greater scheme of modern
judicial decision-making in Aotearoa/New Zealand? And does it matter whether the
decision-maker is Maori or Pakeha?503
2.
THE PRINCIPLE OF WHAKAPAPA
(a)
Introduction
The whole of Maori Custom Law can be described as existing within a whakapapa
framework. In Section B, the ordered process of incremental development that is
whakapapa, and the way that it acts as a vehicle for conveying the substantive aspects of
mana, tapu and mauri from the wairua into all things, was set out. So too was the
hierarchy of authority between gods, humans and the rest of the natural universe. In
Section C, discussion was restricted to practical relationships on the land, formed through
the linking of human whakapapa to specific areas of land. The main emphasis was on the
relationships of authority that were recognised within Maori groups before the advent of
the Pakeha laws on the land in Tai Tokerau.
503
For example, at Regional Council level, of the two decision-makers, one was Maori while the other was Pakeha.
The decision reflects an approach in which significant weight is given to Maori objections based on tikanga. At each
of the three appeal levels the judges were all Pakeha. In all three hearings, Maori objections based on tikanga were
accorded less weight in the overall decisionmaking process, while evidence of tikanga Maori supporting the project
was treated as being more credible.
291
In this Section, I examine the development of the principle of Whakapapa as it relates to
human relationships on the land today.
(b)
Boundaries and Origins of Ngapuhi
In the Geothermal Hearings, the traditional territory of Ngapuhi is defined by Hohepa as
being bounded by a series of mountains which stand facing each other:504
The house of Ngapuhi was erected so that Papatuanuku, the earth mother, is the floor. The
mountains are the pillars [and] Ranginui, the skyfather gazing down, is the roof. Puhanga Tohora
(Whale spume) looks to Te Ramaroa a Kupe (Kupe’s eternal beacon); Te Ramaroa looks to
Whiria (Plaited), the taproots of strife, and the bastion of Rahiri (Ngapuhi’s founding ancestor);
Whiria looks at Panguru and Papata – to where the trees lean, standing in the westerly winds;
Panguru-Papata – looks to Maungataniwha (the Taniwha mountain range), Maungataniwha looks
at Tokerau (Hundred worms or north) Tokerau – looks at Rakaumangamanga (multi branched
tree); Rakaumangamanga – looks at Manaia (names after an ancestor Manaia); Manaia – looks at
Tutamoe; and Tutamoe looks at Puhanga Tohora.
The practice of encircling the territorial domain of a group is a traditional one, often used
by claimants in the Papatupu Hearings referred to in Section C, to delineate ancestral
boundaries. 100 years later the practice is still being followed. Of note is that the
physical boundaries claimed as the ramparts of Ngapuhi no longer reflect the changing
pattern of Ngapuhi movement or settlement throughout Aotearoa/New Zealand.
Territorial boundaries have crystallised as those in existence at the time of colonisation.
This is directly attributable to the workings of the Native Land Court and its successor,
the Maori Land Court since the mid 1800s, when individualisation of title established
firm hapu boundaries for all time.505 New Zealand law has followed the practice of
defining territorial tribal boundaries according to early Native Land Court Hearings.
504
Hohepa, WAI-304, supra note 491, B25(a) at12.
The “1840s rule” resulted from the practice of the Native Land Court of defining land boundaries as at 1840, for
the purpose of individualisation of title. It has had wide reaching effects, one of which is the establishment of
permanent territorial boundaries between groups. Williams, supra note 38 at 185.
505
292
In this Hearing the name “Ngapuhi” reaffirms the broad territory of the descendants of
Rahiri in modern times, and links it to at least four possible ancestral origins. It may have
come from the two “puhi”, or chiefly wives of Kupe the navigator, a founding ancestor of
Maori in Aotearoa, who landed in Hokianga.506 It may also have originated from
“Puhimoanaariki” the Taniwha reputed to have guided the canoe Ngatokimatawhaorua
from Hawaiki to Hokianga.507 Alternatively, it may have originated from
Puhimoanaariki, Puhikaiariki and Puhitaniwharau, who, in some accounts of Ngapuhi
ancestry are named as brothers. More recently, it is possible to link Ngapuhi to “Puhi”,
the younger brother of Toroa of Tuhoe, who absconded to Tai Tokerau from the Bay of
Plenty on the waka Mataatua, and who is an ancestor of Rahiri.508
The origin of the name Ngapuhi cannot be conclusively established as deriving from one
or other of the above sources. It may be significant that the stories originating from
Hokianga appear earlier in the history of Aotearoa, than that which derives from Puhi of
Mataatua, who arrived after Maori settlement of the Tai Tokerau area had already taken
place. The latter Puhi, had his biggest impact on the east coast areas closest to where he
landed and inland from there. Rahiri, was the grandchild of this Puhi. However, the
prefix “Nga”, which means “several” or “more than one” before “Puhi” makes this
derivation less likely for semantic reasons, unless “Nga” is accepted as being an
abbreviated form of “nga uri a Puhi” (the descendants of Puhi), or of “Ngati” which
means “belonging to”. If the term is taken literally to mean exactly what it says, then
“nga” linked to “Puhi” is a reference to several “puhi” and the balance favours the
Hokianga derivations.
Why is there a need to pinpoint the origin of the name Ngapuhi? Under Maori custom
law as it was applied in the Papatupu Hearings, those possessing senior lineage who held
the strongest whakapapa links to the area carried the greatest authority on matters
affecting the land. If this still applies as a rule of general application in Maori custom
506
507
508
Hohepa, WAI-304, supra note 504 at 5.
Ibid at 12.
Ibid at 10.
293
law, and it is protected under New Zealand law, then the speaking rights of those with the
strongest ancestral links to the area will still carry the greatest weight.
In the Geothermal Hearings no question of ranking arose between the parties. In the
Prison Hearings however, ranking by seniority of whakapapa is strongly argued as being
a fundamental aspect of modern Maori custom law in the Bay of Plenty and Ngapuhi. In
dealing with this issue, conflict arises between the evidence provided by Pat Hohepa as
an expert on Ngapuhi tikanga and Ron WiHongi, both from local hapu, and Wira
Gardiner, who is from the Bay of Plenty but has tenuous links to Ngapuhi via Puhi the
Tuhoe absconder. Gardiner is supported in his view of Maori custom law by Ben Te
Haara and his brother Gordon, who are direct descendants of Heta Te Haara, to whom the
land on which the prison site is located was awarded by the Native Land Court in 1874.
(c)
Development of the Principle of Whakapapa
Although the Geothermal and Prison Hearings relate to the same area, and both link
whakapapa to leadership and authority, two different approaches are discernable in the
hearings.
(i)
The Geothermal Claim
The Geothermal claim was brought by the Trustees of a one-acre thermal spring, most of
whom claimed descent from the hapu of te Uri o Hua. Despite this it was carried forward
as a generic claim that included several, affiliated hapu. The claimants did not rank
themselves in any hierarchical pattern of seniority, and the views put forward were
considered to be of equal value. The Tribunal accepted this practice as part of the
“inclusive” way Tikanga Maori operated within Ngapuhi. It also accepted that the claim
extended to cover “Nga Hapu o Ngawha”, the ten affiliated hapu with a direct interest
and possibly others as well. In so doing, the Tribunal adopted an expanded, inclusive
approach to the application of Whakapapa, which highlighted the whanaungatanga links
that existed amongst the claimants. Key witnesses in the Geothermal Claim were Ron
294
WiHongi, Trustee for the Parahirahi C1 Trust, who claimed te Uri o Hua and Takotako
descent, and Pat Hohepa who was commissioned by the Tribunal to provide independent
evidence as an expert on Ngapuhi Tikanga and Traditions.
In the Geothermal Claim, Hohepa portrayed the historical pattern of settlement on the
land in Ngapuhi as being one of “interlocking hapu without clearly defined boundaries
whether based on ancestry, land, marae or any other marker”.509 In support of this, he
highlighted the extensive whakapapa links from Rahiri down to his numerous
descendants that were constantly reinforced through inter-Hapu marriages:510
Hapu also have ancestry which interlock with those of other hapu and that is significant. … This
multiplicity of diverse ancestry and interlocking structure is embodied in the name Ngapuhikowhao-rau, Ngapuhi of a hundred holes, for each Ngapuhi belongs to a multiplicity of hapu. …
The closeness of these relationships was also highlighted in the Papatupu Hearings
outlined in Section C. Evidence from those hearings clearly establishes, however, that
despite close relationships, firm territorial boundaries were established between groups in
this area by rangatira, particularly following a dispute, in order to define territory and
prevent poaching of resources by one’s relatives. Hohepa’s point takes account of a
practical reality in which shared ancestral lines reinforced by constant intermarriage
allowed for free movement between group territories as well as sharing of leadership
amongst family members. It is not a dismissal of boundaries that clearly existed:511
Leadership of hapu does not depend on primogeniture, senior genealogical lines and the like but is
based on the needs of the hapu at the time of choice. Individual charisma, personality,
achievements and continuing success plus supportive whanau and community networks result in
choice by hapu consensus. Within this, members of whanau may often try and promulgate family
dynasties. In the end the people choose their “ranga’tira”, the weaver or unifer (ranga or raranga)
of the group (tira).
509
510
511
Ibid at 18.
Ibid.
Ibid.
295
This statement must be read in light of the prevailing circumstances, as being more true
of modern Maori society than it was of the period covered by the Papatupu Hearings
covered in Section C. While fluid, the underlying pattern of organisation presented in the
Papatupu Hearings, depicts a clear group formation centred around those of senior
lineage who whakapapa to the land. Thus, “family dynasties” of a type did exist,
particularly on the west coast where the pattern of settlement was comparatively stable
and dynasties had time to develop. However, it was a flexible arrangement. Multiplicity
and closeness of ancestral lines meant that relationships were always in flux, with
alliances forming and reforming as the need arose. Sharing of responsibilities amongst
family members did not limit leadership to older siblings or males but was reliant on
several factors relevant at the time, including those stated above by Hohepa. The
Ngawha Geothermal Springs was a resource of considerable value to Kareariki, the
Ngapuhi woman who first claimed the Springs territory and all the descendants of
Ngapuhi, the iwi to which she belonged. Therefore in this claim it is correct to emphasise
the ongoing shared Ngapuhi interest in Ngawha Springs that still exists today.
The leadership pattern in Tai Tokerau can be directly linked to the way Ngapuhi have
developed as a series of small, closely related hapu groups within which, links to senior
lineage could be claimed by most members of the group. Thus, there was usually a
selection of potential leaders to choose from amongst relatives within the group, without
compromising the integrity of the foundational requirement for senior whakapapa
lineage. This was augmented by authority attributed to the tasks carried out by the
various members of the group. Elders, those who held administrative responsibilities as
“mana rangatira” on the land, warriors and food providers all exercised some form of
authority in their relative spheres of responsibility. Traditional Maori society, while
inclusive, appears to have had little tolerance for idleness, and high regard for individual
prowess and ability.
The Tribunal accepted that leadership within hapu depended “on a leader’s capacity to
meet the needs of the group rather than on claims to a superior lineage or to
296
primogeniture”.512 This statement also has to be considered in light of the underlying
whakapapa structure that held Ngapuhi together as a group of affiliated but selfgoverning hapu. Within this confederation, whakapapa lineage has always been an
important consideration in determining leadership roles. Safe movement of individuals
between hapu relied on the protection of these whakapapa links, which underpinned the
“state of dynamic equilibrium, waxing, waning and coalescing”513 that the Tribunal held
to be the Ngapuhi practice of centuries.
It must also be remembered that Whakapapa ranking ultimately relied on continued
possession of land and territory. Loss of land through defeat in warfare could reduce the
status of a senior whakapapa line to that of “pononga”. Alternatively, the tatai (lineage)
could also disappear altogether if descendants chose to adopt a more favourable tatai as
their main ancestry.
Loss of land from hapu ownership as a consequence of Native Land Court
individualisation processes can also be viewed in the same way if circumstances permit.
The sale of land by those entrusted with its care has affected authority relationships
amongst Maori within central Tai Tokerau. In the Ngawha area, 1086 acres of land had
been awarded solely to Heta Te Haara by the Native Land Court in 1873. The Tribunal
described the process as being one in which, “in one swift decision the court converted
one man’s rangatiratanga into a valuable personal estate, severed from all other tribal
considerations”.514 By 1894 Te Haara had alienated the entire Block to two European
purchasers, William Earl and George Patterson.515
In the Geothermal claim the acceptance of a Ngapuhi-wide claim was possible because of
the widespread use of the Springs by diverse hapu, in the past.516 Furthermore, had the
512
WAI-304, supra note 491 at14.
Ibid at 15.
514
Ibid at 22.
515
Ibid at 30-35.
516
The Tribunal recommended that the Resource Management Act 1991 be amended to require that territorial
authorities “shall act in a manner that is consistent with the principles of the Treaty of Waitangi”, in order to ensure
513
297
claim to “ownership” of the entire geothermal resource by Nga Hapu o Ngapuhi been
successful, Ngapuhi would have gained support for negotiating greater control and
management of an important resource of spiritual, medicinal and economic value under
New Zealand law in the future. Had this recognition been forthcoming, the resource is
likely to have been vested in a group representing Nga Hapu o Ngawha. It was important
in this claim to apply the principle of whakapapa expansively in order to identify all those
entitled to share in any resulting gains. Accordingly, a wide net was cast in order to
capture all those with a potential benefit.
(ii)
The Prison Hearings
In the Prison Hearings 10 years later, Hohepa, WiHongi and others presented much of the
same evidence regarding Whakapapa and its operation as part of Maori custom law in
Ngapuhi. In both Hearings, Hohepa’s credentials were established as being those of a
kaumatua, born and raised within the Ngapuhi areas under discussion, and a linguist and
former Professor of Maori Language and Anthropology at the University of Auckland.
In this Hearing, however, Hohepa’s evidence conflicted with evidence presented by the
Crown’s “Maori tikanga” expert, Wira Gardiner. Gardiner’s whakapapa lineage is linked
to the Bay of Plenty region and the tupuna Toroa. Around twenty generations ago, Puhi,
the younger brother of Toroa, had purloined the waka Mataatua and absconded up the
east coast to Taipa, where his whakapapa became intermingled with the people of that
area. Gardiner stated that his whakapapa link through the father of Puhi, “enables me to
comment on the generic application of cultural terms and to make observations on
assertions made by submitters in the context of this particular hearing”.517
In the context of Maori custom law, Gardiner’s opening statements are extremely
important. Being able to link oneself to the land under discussion is an important
they were not depreciated or outweighed by other considerations. This recommendation has not been implemented.
WAI-304, supra note 491 at 155.
517
Statement of Evidence of Wira Gardiner on behalf of the Minister of Corrections, before the Environment Court,
RMA No. 408/00,429/00,306/01, at 2.
298
requirement of Maori custom law in Ngapuhi, if one’s words are to carry weight. The
assertion that the name “Ngapuhi” is derived from Puhi the absconder, assumes a preeminent position for Gardiner in Ngapuhi history that is not substantiated by other
evidence. In a Maori controlled forum, such as that which managed the Papatupu
Hearings, Gardiner’s credibility as an expert within Ngapuhi would have been questioned
at this point. In a European-based hearing forum however, the judges appear to have
been none the wiser. The underlying assumption that Ngapuhi and Mataatua cultural
practices are similar enough to be able to draw direct analogies between the two, would
also have been questioned by a Maori decision-making panel, as a preliminary matter,
before the main hearing.
Gardiner’s credentials as an expert on “Maori Tikanga” are based on his business
acumen, vast experience gained through representing the Crown in Treaty negotiations,
and as a Commissioner hearing applications for resource consents under the Resource
Management Act 1991. In this Hearing he appeared as a Crown expert witness on Maori
cultural matters. Gardiner was supported by Ben Te Haara, former Anglican Bishop for
Tai Tokerau, and direct descendant of the past owner of the prison site land, Heta Te
Haara.
Gardiner’s evidence is that a Maori custom law rule exists which holds that senior
genealogical lines are determined by primogeniture, which in turn, produces a
“tuakana”(senior)/“teina”(junior) relationship that places authoritative decision-making in
the hands of tuakana. Its application in the present circumstances, would give the
descendants of Heta Te Haara supreme speaking rights on matters relating to the land.
Co-incidentally, it would also favour those Ngati Rangi who support the Crown prison
initiative, above those who are opposed to the building of the prison. According to
Gardiner:518
when a consensus cannot be reached the overriding authority lies with the direct descendants of
Heta Te Haara, in particular Bishop Waiohau Te Haara and Mr Gordon Te Haara, to provide
518
Ibid at 23, para 65.
299
resolution. No other hapu or whanau has the same degree of right or authority to speak; however
as general stakeholders in the Ngawha area they are not precluded from having their say.
In speaking as an elder of Ngati Rangi, Ben Te Haara adopted a similar stance:519
2.
Within Ngati Rangi hapu, I am recognised as Tuakana (senior elder) of the whanau most
closely associated with the land known as Tuwhakino. The tuakana is recognised as the
senior person in relation to others of a whanau or hapu. The proposed prison site (D2) is part
of Tuwhakino and is now owned by the Minister. At one time this particular block was
owned by my grandfather. I am the senior kaitiaki representative in relation to the block and
Tuwhakino generally.
8.
Tikanga comprises various concepts and one of them is the Tuakana/Teina mentioned above.
Literally this means elder and younger but in effect it is much more important. I will say it is
the manner by which one exercises eldership towards whanau, hapu and iwi. The balance
between teina and tuakana has to be based on trust and transparency.
9.
In Maori cultural terms, the tuakana had rights above that of teina. It was offensive for a teina
to publicly correct or disagree with the tuakana; in bygone days it could have resulted in
banishment for the offender or some other form of discipline. Today discussions and ideally
consensus is the preferred option.
In claiming tuakana, or senior status, Te Haara draws primarily upon his position within
his own whanau, divorced from any connection to the land. The traditional association
between whakapapa and a specific area of land is only a secondary consideration, this
link being derived from his grandfather, who was once acknowledged as having “mana
rangatira” authority on the land. However, his grandfather sold the entire Block out of
Maori ownership, permanently dispossessing others who had no option but to rely on him
to retain and look after their interests in the Hapu estate. Mana rangatira within Ngapuhi
was not derived solely from ancestry. It was land-based and reliant on the maintenance
of sound relationships and support from within the whanau group. The sale of the land
would have reduced the authority attributed to Te Haara and his descendants by other
whanau within the area, particularly if they did not receive part of the payment. Division
519
Environment Court Decision, supra note 492 at para 389.
300
in family loyalties is apparent in this hearing, with his older sister Agnes and her children
appearing on the side of the objectors.
Te Haara reinforces his claim to tuakana status by stating that he is the “recognised
tuakana” in modern terms, while conceding that “today discussions and ideally consensus
is the preferred option”. His acceptance of this change in practice over time moves him
away from the rigidity of Gardiner’s stance toward the more inclusive approach to
leadership authority taken by Hohepa.
It is not clear whether Te Haara is referring to “age” or “whakapapa lineage” as being the
foundation of his “senior” status within the group. The Papatupu information examined
for Section C, establishes the two as mutually exclusive ways of achieving seniority with
a group. Individuals possessing senior lineage would frequently refer to others of
“lesser” lineage as “tuakana” because they were related and belonged to the parent
generation. Likewise, a person of lesser lineage, while referring to himself as “he uaua”
or a “minor vein”, would nevertheless refer to everyone from the younger generation as
“teina” irrespective of lineage. Elders expected, and were accorded much respect.
Respect for generational seniority is still recognised as a protocol of Maori custom law
within Ngapuhi. Even with the erosion of respect following the sale of the land by his
ancestor, Te Haara could still be considered a “senior” member of the group because of
his age. That he was the sitting Anglican Bishop for Tai Tokerau at the time would
further enhance his personal status within the local Maori community, although the
authority derived from that role is completely independent of any Maori basis in tikanga.
This amalgam of roles is noted in his evidence in reply, in which he acknowledges that
“the [modern] tuakana role relates to seniority, qualifications and experience”.520
Te Haara’s grandfather was one of three rangatira who applied for determination of title
to the land in 1873. The shared authority and responsibility was severed, however, when
Te Haara was granted sole title. If direct descent from one of three applicants, three
520
Environment Court Decision, supra note 492 at para 390.
301
generations past, can establish a new line of senior whakapapa on the land, then the claim
of the Te Haara’s to seniority is correct. This would give recognition to the Native Land
Court’s intervention as severing all past links to the land and starting a completely new
claim of entitlement with Heta Te Haara as the eponymous ancestor. To continue this
claim to seniority of ancestral link after the land had been voluntarily sold would require
a further modification of Maori custom law to accept pure claims to Whakapapa as
having survived severance from the land. To accept that the Te Haara family retained its
tuakana status by whakapapa alone, in these circumstances, would be to treat the
detrimental impact of the land sale on the rest of the group as inconsequential. Another
alternative is that Te Haara’s grandfather somehow retained a phantom land link, despite
the land sales, and that this has passed to his successors by way of some form of
metaphysical connection.
Notwithstanding, Gordon Te Haara declared that his brother Ben was the “living heir of
the last Ngati Rangi Chief Heta Te Haara”, and as such, was able to pronounce the
collective view of Ngati Rangi that the site was appropriate for a prison facility.
Furthermore, greater authority should attach to this view than to that of opponents of the
proposed facility.521 Gardiner reinforced this view: 522
In traditional Maori society the tuakana has the right to determine the broad direction and
operational policies of the group over which he has authority, and the younger sibling or teina is to
support those decisions. … in contemporary Maori society, the role of tuakana is still generally
observed across and within most tribes, and is clearly important to Ngati Rangi.
Wallace WiHongi affirmed such practices as modern Ngapuhi tikanga, stating that “the
clear purpose of this concept [of tuakanatanga] in modern times is to maintain the future
survival and order of Maori, and in this instance Ngati Rangi.”523
521
522
523
Ibid, para 392.
Ibid para 397.
Ibid at para 395.
302
Mac Anania of Ngati Rangi claimed that Ngati Rangi held seniority over the hapu of
Ngati Hine and Nga Uri o Hua, in matters relating to the prison site, and that it was their
responsibility, as “teina”, to “tautoko”, or support, the tuakana hapu.524
Relying on his earlier statements concerning Ngapuhi tikanga, Hohepa challenged the
literal approach to superior whakapapa status being accorded to Ngati Rangi and male
members of the Te Haara whanau, within Ngawha. He pointed out that whakapapa lines
were closely interwoven and seniority in later generations depended on which line one
chose to descend from. Over time whakapapa inevitably became cluttered. Tracing
direct lineage from Hineamaru, the ancestor for Ngati Hine, and Te Rangiheketini, the
ancestor for Ngati Rangi, could produce a situation in which one individual could be
“tuakana”, “teina” and “autane” (in-law) all at the same time. In order to overcome this
type of entanglement, Ngapuhi had developed the term “karanga maha”525 or “many
callings”, a generalised and polite concept acknowledging simultaneous whakapapa lines,
as a way around the clutter that multiple lineage produced. The only alternative, in his
view, would be to trace ancestry exponentially, back sixteen generations to Kareariki and
Uenukukuare. According to Hohepa, absolute correctness would require an examination
of 65,536 ancestral names.
It is clear that the assertion of “tuakanatanga” was aimed at diminishing the evidence
provided by Hohepa as an expert on Ngapuhi tikanga, and Ron WiHongi who opposed
the prison being located in Ngawha. WiHongi’s evidence had been persuasive in the
Geothermal Hearing where Maori from the area were of one mind. Te Haara claimed
that because Hohepa was not from Ngati Rangi and not of Ngawha, he could not speak
about Ngati Rangi tikanga.526 He held no similar misgivings, however, about the cogence
of the evidence provided by Gardiner, whose stated links to the area were some twenty
generations removed and tenuous. Gardiner also attempted to undermine the speaking
authority of Ron WiHongi by asserting that he had “no authority by whakapapa to disturb
524
Ibid at para 394.
Statement of Patrick Hohepa on behalf of he Northland Regional Council in the Environment Court, RMA
408/00,429/00,306/01.14 at para 10.9.
526
Environment Court Decision, supra note 492 at para 390.
525
303
the rights of the tuakana line to speak on the spiritual or cultural issues of the D2 site on
the Tuwhakino Block”. 527 Similar views were expressed regarding the testimony of all
those who appeared in opposition to the prison, some of whom also belonged to Ngati
Rangi, but were allegedly, not of the tuakana line.
The Northland Regional Council had turned down resource consent for the prison project,
on the basis that it would have adverse effects on the relationship between tangata
whenua and their ancestral lands, waters, waahi tapu and other taonga, and would fail to
enable tangata whenua to provide for their social and cultural well-being. The
Environment Court overturned the Regional Council decision and granted consent. In
terms of its analysis of whakapapa, the Court spent six pages discussing the diverging
views of “tuakanatanga”. However, it avoided making any finding, stating instead,
“there is no need to decide those questions in order to make the findings required to
determine these proceedings”.528 Thus a fundamental aspect of Maori custom law in Tai
Tokerau remains unresolved, despite the strength of argument put forward from either
side on the issues.
(d)
Conclusion
The change in Maori social demography and Maori institutional structures since
colonisation has influenced the development of Maori custom law practices and its
supporting principles within Tai Tokerau. The different approaches apparent in the two
hearings discussed above raise issues that Maori need to discuss in a Maori controlled
forum, if Maori custom law is to develop as an independent source of law.
The “inclusive” approach adopted in the Geothermal claim is based on the development
of a broad concept of Whakapapa that acknowledges whanaungatanga links as providing
equality between individuals. Although Whakapapa connections to “Ngapuhi” are still a
basic requirement for membership of any group, claims have become territorial in that
527
528
Ibid at para 398.
Ibid at para 410.
304
speaking rights can be exercised by all individuals with an interest. In this matrix,
authoritative leadership is more reliant on popular support for individuals and causes
rather than historical claims to senior lineage based on whakapapa alone. This is
particularly so when proponents of tuakana status belong to the line that sold the land,
thereby depriving their future generations of their land rights. It seems unfair that having
breached their authority once, the same family should then be able to continue to
marginalise the views of others in decision-making, “as of right”.
Support for expanding the application of Whakapapa as promoted by Hohepa, is derived
from modern circumstances in which massive land loss has occurred within Ngapuhi and
where many Ngapuhi spend a great deal of time living outside hapu and iwi territories.
The requirement that individuals must keep close physical proximity to the land in order
to keep their rights warm is unfair in circumstances where individuals had no say in the
sales. Many of those who remain on the land as “ahi kaa” are the privileged recipients of
the benefits of the Native Land Court individualisation process whose ancestors, like Te
Haara, were awarded sole title to large areas. As “ahi kaa” they will always enjoy a
greater say in local matters, as is the case here. But where whakapapa is the only durable
link left between people and place, inclusive, group decision-making is more reflective of
the society Maori now live within.
Another approach is evidenced in the Prison Hearings, where the awarding of land title
by the Native Land Court is set up as a new, post-individualisation “tikanga”, that
establishes a new root of senior authority on the land. This approach ignores sale of land
as a significant event interrupting the line of authority. It relies primarily on whakapapa
descent having become rigid and reified at the time the Crown granted title to a single
owner. That traditional authority should continue unabated in the face of land loss and
dispossession of others is difficult to accept as tikanga, as traditionally, rangatira lost their
mana when they lost the land.
During the Papatupu Hearings lineage emerged as a principal determinant of authority
over land matters, within small, close-knit groups where leadership was often shared.
305
But even at that time, rangatira observed that their authority was eroding in the face of
changing circumstances brought about by colonisation, expropriation through sales and
greater commercial opportunities.
Historically, matters concerning local groups were dealt with internally and assessed
against the tikanga that operated within the area, by the elders. In the Prison Hearings,
the use of Gardiner as an expert on Maori tikanga by the Crown, breached the Maori
custom law practice of internal decision-making. The assertion of tuakana/teina as a
strict rule within Ngapuhi was also an affront to the local people. However, in the wider
legislative scheme of things it served the primary purpose for which he was employed – it
provided a firm platform on which to establish the authority of those who supported the
prison, before the Environment Court.
In the Bay of Plenty, circumstances may well have produced the family dynasties and
strict tuakana/teina practices claimed by Gardiner. In Tai Tokerau, however, a more
flexible arrangement has been adopted. It is this divergence in practice that lies at the
base of the difference in approach taken by Hohepa, who recognises and acknowledges
movement and choice within whakapapa lines and Gardiner, who stays true to his own
iwi practices of strict primogeniture.529 A further complication in the way of adopting
strict primogenture within Ngapuhi, is that women also exercised authority on the land.
However, this matter is not canvassed beyond the mention of its existence by Hohepa in
his evidence, and the fact that Kareariki and Hine Amaru are named as eponymous
ancestors for hapu within the area.
Large-scale loss of land has encouraged inclusive practices amongst Ngapuhi Maori,
many of whom only retain territorial whakapapa links to land through marae and other
shared, small hapu holdings. Amongst these groups the practice of reaching decisions by
consensus has become the norm and claims of tuakana seniority has historical
significance only. The practical function of Whakapapa now is that it produces a right to
529
The rule of “primogeniture” which provides for land rights to pass to the oldest child, usually male, and its
operation within the Bay of Plenty is beyond the scope of this thesis and will not discussed in detail beyond the
assertions made in Gardiner’s expert evidence. Gardiner, supra note 517.
306
be included in decision-making concerning group territory and interests. But it lacks the
absolute authority it once commanded, having become reliant on leadership by
persuasion and respect instead.
307
3.
THE PRINCIPLE OF WHANAUNGATANGA
(a)
Introduction
In Section B, Whanaungatanga was discussed as a principle of Maori custom law that
emphasised relatedness amongst those with shared whakapapa. Recognition of this
principle produced a collective group identity and a society in which strong obligations
and responsibilities existed toward kin. The principle of “aroha”, or showing affection
for kin, was best given effect through the sharing of roles, and tasks, including leadership.
Active duties were owed to others by those who exercised authority on the land.
Diplomacy and care were essential in these roles, particularly as institutions such as “tuku
whenua” required rangatira to assert authority to ensure the welfare of the group. The
practice of “utu” provided an institutionalised form of settling wrongs that had been
committed against kin. It required physical strength and the ability to draw the line and
cease fighting.
Large scale loss of land from Maori ownership in Tai Tokerau from the mid 1800s
onwards, meant that the basis for formulating kinship and group affiliations within the
area had to alter. Although whakapapa remained key to identity, the need to support it
with continuing occupation and possession of land within specific areas was no longer
possible.
In this part of my study I will examine the evidence put forward in the Geothermal and
Prison Hearings, to see how group identity has developed in the past 100 years, and the
extent to which the principles of “aroha” and “utu” are now being employed in modern
discourse within Tai Tokerau.
(b)
Changing Group Identity
In both the Geothermal and Prison Hearings, extensive whakapapa links are
acknowledged as unifying descendants of Rahiri, many of who now live outside Tai
308
Tokerau. Of those living within Tai Tokerau, most live on land that is held in “fee
simple” title under New Zealand law. Only small pockets of Maori freehold land exist
within the area and no customary land exists at all. 530
(i)
Geothermal Hearings
In the Geothermal Hearings, the claimants, although legal trustees of only a small, 1 acre
area of land, brought their claim on behalf of “Nga Hapu o Ngawha”, in acknowledgment
of the whanaungatanga links between the locals from the surrounding areas, and their
shared interest in the underground geothermal resource.
The practice of sharing amongst local Maori is not only the result of land loss. In his
evidence for the Geothermal Claim, Hohepa sets out the uniqueness of historical
governance structures in Ngapuhi, which, being descended from several canoe ancestors,
lack “pyramid hierarchies or clearly segmented co-equal sectors”.531 He states that the
pattern in Ngapuhi is one of “interlocking hapu without clearly defined boundaries
whether based on ancestry, land, marae or any other marker.”532 Within this milieu of
diverse and interlinked ancestry a norm has arisen whereby, “individual charisma,
personality, achievements and continuing success plus supportive whanau and
community networks”533 gave rise to consensus decision-making.
Hohepa’s historical analysis emphasises whanaungatanga at the expense of all other
considerations, including the territorial boundaries set out in the information provided in
the Papatupu hearings for the area by local rangatira, in Section C. His focus on the
principle of whanaungatanga allows for a modern form of “turangawaewae”, or standing
ground, to emerge which incorporates Maori who have lost their personal connections to
land but who wish to maintain their identity as Ngapuhi.534
530
The definition of all land in New Zealand is found in Section 129 of Te Ture Whenua Maori Act 1993.
Hohepa, WAI-304, supra note 504 at18.
532
Ibid.
533
Ibid at para10.
534
Ibid at 19.
531
309
What unifies Ngapuhi is the converging tatai, hapu equilibrium, and a range of protective physical
mountains and shared metaphysical minders, guardians and landscapes.
The Geothermal Claim provides a classic example of the uniqueness of mindset that lies
behind the principles that constitute Maori custom law and the unity they give rise to.
The Ngawha resource symbolises the multiple connections shared by people whose
historical links have otherwise been severed by land alienation processes over which
many of those who were directly affected had no control:535
Ngawha is an unifying landscape of that kind. The ancestral minders – the ancestors long
departed, the names they left, their burial caves, join the metaphysical minders – the taniwha
Takauere, the dog Kaipahau also a taniwha, and the living minders – the caretaker hapu groups
which care for the medicinal and physical and spiritual unifies and makes Ngawha what it is – a
taonga of Ngapuhi.
This intellectual mindscape continues to exist long after the physical links to the
surrounding landscape have been altered by changes in ownership. Its perpetuation as a
worldview remains linked to, and dependent on, continuing recognition amongst Maori
within the area, and others within wider New Zealand society. Without it, Maori custom
law loses coherence as a system.
In further expressing the Maori mindset at the time the Springs area was partitioned, Ron
WiHongi stated in his evidence that the reason the Parahirahi Block was surveyed out of
other land sold, was:536
E mohio mai nga tipuna, kia whakawehia mai enei waikaukau, ka mau tonu to ratou taonga mo
ake tonu. Ko to ratou hiahia, ki tohungai ratou, te katoa ote taonga, ara, ko nga ngawha o runga o
te whenua me nga araara waiwera o raro. I to ratou nei whakaaro, i te mau tonu i ratou te putanga
ake o te taonga, ko mau te katoa, tatu atu ki tona patu mano. Koi na tena te take e hiahia ai, ratou
kia mau tonu tena rima eka, i Parahirahi C mo ake tonu atu.
535
536
Ibid at para 4.
R WiHongi, Transcript of Kaumatua Evidence, WAI-304, Tape 2, 12 October-15 October 1992, 53.
310
English Translation
The ancestors knew, that if the pools were surveyed out, they would retain their taonga forever.
Their desire was to retain the whole of their taonga, that is, the hot springs above the ground and
the hot streams underground. In their thinking, if they retained the outlet of the taonga, they
would retain it all, right down into the bowels of the earth. That is why they desired to hold on to
the five acres of Parahirahi C forever.
Lack of technology in the 19th Century meant that the control these actions gave over the
geothermal resource was almost absolute at the time. However, the general area quickly
became subjected to exploitation for mining and tourism when Heta Te Haara sold his
rights in the Tuwhakino Block, from which the Ngawha Springs had earlier been
partitioned.
The nature of the Ngawha Springs as a healing resource meant that it was used by several
groups within Ngapuhi. Sharing of the resource was later extended to include other New
Zealanders and foreigners seeking therapeutic healing from its waters. The long history
of the association between the Springs and local Maori, and the changes that have
occurred over that time, are described by Richard Boast in the Geothermal Hearings,
thus:537
… the Maori people at Ngawha have seen many changes to their springs. Usually there have been
periods of great activity by those wishing to exploit the place for mining or tourist development,
followed by long periods of neglect after the failure of such ventures. The evidence seems clear
that through all this Maori have maintained a presence at Ngawha, have continued to use the
springs, have been generously willing to share them with other people (even to the extent of
constructing facilities for visitors) and that there has been a continuous tradition of the springs’
medicinal qualities.
The principle of whanaungatanga can be observed in the series of relationships
recognised in practices associated with the Ngawha Springs over time. Shared past,
537
R Boast, WAI-304, supra note 491, A34 at 19.
311
shared needs and shared whakapapa have all merged to produce unity amongst a diverse
group of people. The extent of this cordiality amongst the locals even extended to those
whose proposed operations where opposed by the Parahirahi C1 Trust. In 1991, Trust
Chairman, Wiremu Tairua, had begun negotiations with the Bay of Islands Electric
Power Board and the Tai Tokerau Maori Trust Board, to enter into a joint venture aimed
at extracting geothermal energy for electricity generation from the area. The Parahirahi
C1 Trust later withdrew its support for the scheme, by way of letter in which Graham
Rankin, Chairman, stated:538
… after sitting on the subject for some weeks, I have since met the Trustees. … the decision was
still the same “bow out” “Protect the Springs” constants.
So we have to ask you to join us in the process of bowing out quietly without publicity. We would
be foolish to remain with future protractions empty baggage penniless but happy to be children of
the gumfield our tribes may mesh maybe groups of three our whanaunga are very close relatives in
fact. Sure the offer of 50% seemed like a offer from Gods. We would never witness another offer
for something that does not belong to us in the meantime if ever.
Rankin asked that the Power Board seek landowner consent via the proper planning
consent process so that they would have the opportunity “to object via the proper
channels”. The Tai Tokerau Maori Trust Board continued on with the joint venture, and
were successful in gaining the necessary resource consents. Whanaungatanga links with
the Tai Tokerau Maori Trust Board and the initiation of the project by the Parahirahi
Trustees appears to have tempered the animosity that may otherwise have arisen between
the two parties.
(ii)
Prison Hearings
In contrast, the Prison Hearings provide evidence of divided interests and individuals
fighting for supremacy. The affidavit evidence shows little respect for those in
538
Letter to Sir Graham Latimer from Graham Rankin, Chairperson, Parahirahi C1 Trust, 27 August 1991.
312
opposition by proponents of the Prison. Although whanaungatanga, in terms of shared
whakapapa is acknowledged as a matter of fact amongst the various groups living in the
area, these hearings are notable for the disjunctive approach taken to the land and the
human relationships on it.
In order to maximise their case, the two Te Haara brothers who support the prison and
their supporters, sever the prison site from the rest of the landscape and treat it as
standing alone. Having severed the landscape, these descendants then claim that their
view should be given greater weight than that of others from the area. The justification
for this is recourse to tikanga that requires rigid application of rules relating to
primogeniture and tuakana/teina in a way that has not existed in the form asserted in these
Hearings, since at least 1894, when the land was lost by sale.
(c)
Aroha/Atawhai
The Papatupu Hearings provide a lot of evidence of responsibilities being shared amongst
different members of a group. The more roles one excelled at, from gardening, to fishing,
to fighting, the greater the mana one acquired and the more responsibility one took for the
welfare of one’s relatives. Shared responsibility maximised group survival. The
administration of tikanga on the land, which fell primarily to those of the rangatira class,
was also circumscribed by duties to others. Whanaungatanga links often crossed over
territorial boundaries set up by ancestors and powerful rangatira could draw allegiance
from several related groups.
Today, the land base that supported that authority in Tai Tokerau is no longer held by
Maori. With its depletion, institutions once fundamental to the practice of Maori custom
law, such as “tuku”, are no longer available to ensure group welfare. Colonisation and
individualisation of land title also diminished the imperative force of responsibilities
owed by rangatira toward other members of the group. Thus, rangatira such as Heta Te
313
Haara were able to sell the hapu estate of Ngati Rangi without consideration for the
welfare of his people or their being able to prevent it. With the dimunition of duties
owed, the cohesive fabric of the group began to disintegrate and rangatira lost the mana
they once enjoyed. The assertion of individual autonomy also posed challenges to the
authority of those with senior lineage.
Despite the above, there is a strong resonance of obligations felt towards others in both
the Geothermal and Prison Hearings, by those holding leadership positions of an
administrative and pastoral nature.
(i)
The Geothermal Hearings
In the Geothermal claim, personal obligations owed by rangatira to others is extended
into a group principle whereby “rangatiratanga” represents “Maori authority” at the time
of colonisation. The Tribunal adopted the definition of “rangatiratanga” set out in the
Muriwhenua Fishing Report 1988, as follows:539
“Te tino rangatiratanga o o ratou taonga” tells of the exclusive control of tribal taonga for the
benefit of the tribe including those living and those yet to be born. There are three main elements
embodied in the guarantee of rangatiratanga. The first is that authority or control is crucial
because without it the tribal base is threatened socially, culturally, economically and spiritually.
The second is that the exercise of authority must recognise the spiritual source of taonga (and
indeed of the authority itself) and the reason for stewardship as being the maintenance of the tribal
base for succeeding generations. Thirdly, the exercise of authority was not only over property, but
[over] persons within the kinship group and their access to tribal resources.
539
WAI-304, supra note 491 at 19. The original reference is to the Report of the Waitangi Tribunal on the
Muriwhenua Fishing Claim – WAI-22, Wellington, 1988, 181.
314
It is the second aspect of rangatiratanga with which the Ngawha Trustees are concerned
in this Hearing. The Tribunal accepts this qualification, stating:540
Thus the care for and fostering of resources was an integral part (but only a part) of rangatiratanga,
and where resources were clearly demarcated, the rangatiratanga in respect of them could equally
well be described as kaitiakitanga (guardianship).
In the Geothermal claim the primary obligation acknowledged by the Trustees was to
protect the thermal resource from interference. The secondary obligation was to preserve
it as a community resource. The duty of protection fell to 12 Trustees who were
descended from the owners who were awarded title in 1874.541 Initially they had held the
resource solely for members of Ngapuhi iwi. Later, as the medicinal value of the Springs
became widely known, their trusteeship was extended to all those who wanted to partake
of its healing powers. In their role, the Trustees exercised “mana rangatira” over the
extremely small area of the resource, in much the same way as their ancestors had over
the entire area, hundreds of years ago. Why? It was their duty as kaitiaki or guardians, to
preserve the life-force or mauri of the Springs as an entity by ensuring that it remained
intact.
The present day Trustees included Ron WiHongi. In his affidavit evidence, WiHongi
says that he does not want the field desecrated by a geothermal extraction project
because:542
E mohio nei ahau mehemea ka mahia wetahi mahi nuku atu, he kari te whenua, i raro i te
whenua, i te mea na i whanaki nga wai, ka pa ki te puna i raro.
540
Ibid at 20.
With individualisation of title all Maori appointments to positions of authority over multiply owned, Maori
freehold land became subject to the oversight and approval of the Native Land Court and its successor the Maori
Land Court.
542
R WiHongi, WAI-304, supra note 491, A54(a) at 10.
541
315
English Translation
I know that if there was drilling done, underground and above, it must affect the source of
supply of the spring.
WiHongi’s view is that interference in something that has been “given by the atua as a
medicine for our people” will be a desecration of that gift, even if the drilling does not
directly affect the source of supply for the Springs. The “interference” that he is referring
to is not limited to physical harm. After setting out the various ailments that the springs
heal, he adds, “kau e ra e tangohia te mana o te taonga homai nga ke” (do not take the
authority/power of the taonga we have been given).543 It is the natural vitality of the
resource, its “mauri”, that he sees as being endangered. WiHongi is afraid that the
healing mauri will be taken from the resource if holes are bored into it and its life force is
extracted and used for power generation. This is a similar type concern to that expressed
by Maori elders, referred to in Section B, after atomic bombs were dropped on the cities
of Hiroshima and Nagasaki in order to end World War II. It is a plea for caution in
situations where the effects are unknown and potentially harmful to something of great
value.
The kaumatua feared that the system would not be able to sustain ongoing exploitation of
the type envisaged by the Power Project. Changes observed in the Springs as a result of
prior attempts at extracting minerals, had led to the view that interference would cause
the energy levels to alter and detrimentally affect the healing power of the pools. The dire
consequences of this for Taitokerau Maori was voiced by Andy Sarich, “if all our
resources, what little is left to Maori, is exploited, what are we going to have left?”544
Graeme Rankin was the longest serving Trustee of Parahirahi C1 Maori Reservation. He
had served twenty-eight years, having replaced his father, Hone Heke Rankin in 1964.
543
544
Ibid at 59.
A Sarich, supra note 491 A54(i) at 1.
316
Rankin says that the trustees “totally believe that our role is to protect the springs for the
benefit of all”.545
I believe that its healing powers, God-given, are sourced deep within the mother earth. And any
interference with that spiritual source is a desecration of our taonga.
As a trustee of Parahirahi C1, to allow such a thing to occur would be a breach of the trust vested
in me by my father and by all of the Hapu of Ngapuhi.
… In our opposition, we remain true to our taonga, our traditions and our trust.
The attitude of the Trustees to the broad relationship shared by the people in the area and
the importance of Ngawha as the junction between Taumarere and Hokianga, is
expressed in a proverb connecting the two, cited in the Tribunal’s Report:546
Ka mimiti te puna o Taumarere
Ka toto te puna i Hokianga
Ka toto te puna i Taumarere
Ka mimiti te puna i Hokianga
English Translation
The Spring at Taumarere empties
The Spring at Hokianga overflows
The Spring at Taumarere overflows
The Spring at Hokianga empties
In the Geothermal Hearings the various hapu were united in the claim that
whanaungatanga led to shared kaitiakitanga over the entire geothermal resource of the
Ngawha area. “Kaitiakitanga” was viewed by the Tribunal as being one aspect of the
wider claim of “rangatiratanga” under Article 2 of Te Tiriti o Waitangi.
“Rangatiratanga” was accepted as being the Maori equivalent of “ownership” under the
English common law:547
545
546
547
G Rankin, supra note 491 A54(q) at 1.
WAI-304 supra note 491 at 15.
Ibid at149.
317
At the time of the signing of the Treaty of Waitangi in 1840, and for centuries previously, the hot
springs of Ngawha and the underlying resource which fed these springs were a sacred taonga of
Ngapuhi. … They certainly knew that the hot springs were fed from the underground resource.
They knew of their discovery by Kareariki and of the subsequent manifestation of the taniwha,
known to this day by the name Takauere, as a protector of the resource.
As we have earlier noted, such beliefs, whether allegory, myth or history, serve to impart
ownership rights, certainly on the basis of discovery and subsequent unbroken occupation and
control, over whatever resource was regarded as essential for the people’s well-being. And none
has been more valued by Ngapuhi than the springs at Ngawha.
(ii)
The Prison Hearings
In the Prison Hearings, the concept of “trusteeship” of resources is a central aspect of the
judicial process. Trusteeship had been incorporated into the legislation governing
proceedings via incorporation of the concept of “kaitiakitanga”, as one of several “other
matters” that decision-makers had to have “particular regard to” in administering the
Resource Management Act. In the Act, “kaitiakitanga” is one of several considerations to
be taken into account. It is part of a wider matrix aimed at “managing the use,
development and protection of natural and physical resources”. This in turn, is aimed at
fulfilling the primary purpose of the Act, set out in Section 5 as being “to promote the
sustainable management of natural and physical resources.” It is clear from the outset,
that kaitiakitanga does not occupy the pre-eminent position under New Zealand law
accorded it by trustees of traditional Maori resources such as the Ngawha Springs under
Maori custom law.
a.
The Ambit of “Kaitiakitanga”.
In the Environment Court, the Northland Regional Council, defending its earlier decision
to refuse resource consent, argued that it was wrong to privilege Ngati Rangi as being
kaitiaki, over others who were also directly related to the resource. To do so would be to
rely solely on the legal grant of title to the entire Tuwhakino Block by the Native Land
Court to Heta Te Haara, as an individual. In its view, such an approach would be too
318
restrictive and not in accordance with Maori custom law, which recognised broader
affiliations. The proposed D2 site was part of a wider area of land that had once
belonged to a far greater number of local Maori than simply the Te Haara whanau.
Drawing on the practice established in the Geothermal claim for the same area, the
Council stated that Nga Hapu o Ngawha collectively were kaitiaki of the area.548
Furthermore, in the Council’s view, kaitiakitanga had as its starting point “respect for the
mana, wairua and mauri of the resources affected” ie., for the land as opposed to the
people claiming authority over the land. This placed an obligation on the Crown to
satisfy kaitiaki that there were no reasonable alternatives to the scale of the works
involved.549 In opposition, Gardiner, as an expert on Maori tikanga stated that “wairua”
was a non-physical state belonging to humans and not to inanimate or non-human
entities. 550 Therefore the land would not be adversely affected by the proposed works.
The Crown’s approach to deciding who held kaitiakitanga was based on application of
the statutory definition of “mana whenua” in Section 2 of the Resource Management Act
1991, to the narrowly defined area of the Prison site.
Section 2 states:
“Mana whenua” means customary authority exercised by an iwi or hapu in an identified area.
The Crown argued that the Te Haara family, who supported the building of the prison,
held “mana whenua” over the D2 site and that the WiHongis, who objected, were not
kaitiaki and did not have mana whenua status in regard to the site.551 Ben Te Haara also
claimed that his family, together with Ngati Rangi, were the “primary kaitiaki” of the
Tuwhakino Block on which the prison was to be sited. Ngati Rangi also shared
kaitiakitanga of the Ngawha Springs with other hapu.552 This stance was reinforced by
548
Environment Court Decision, supra note 492 at para 502.
Ibid at para 503.
550
The assertion that wairua is limited to humans is clearly wrong. In Tai Tokerau “wairua” is commonly used to
refer to the original material from which all aspects of existence is drawn. Application of the principle of
whanaungatanga unites the various components into a single entity that is infused with wairua.
551
Environment Court Decision, supra note 492 at para 505.
552
Ibid at para 513-514.
549
319
Gardiner, who opined that Ngati Rangi’s primary kaitiaki role with regard to the D2
Block, had been retained after Heta Te Haara sold the land in 1894.553
Mr Gardiner explained that kaitiaki status is based on possession or authority over land; and
although the land was disposed of in the 19th century, the Te Haara whanau are specifically
responsible kaitiaki for the Tuwhakino land and the D2 site and the waters which run through or
under the site, and retain spiritual and cultural authority over the area. He testified that the
Department of Corrections had listened to the kaitiaki and properly provided for their relationship
with the Ngawha stream.
In opposition, Ron WiHongi stated that before the land was individualised there had been
10 owners, who had come from Te Uri o Hua hapu and not from Ngati Rangi. These
ancestors were his tupuna, and he was therefore entitled to claim kaitiaki status on
Tuwhakino Block too.554 He was supported by Garry Hooker of Te Roroa, who stated
that the Ngawha area had once been held by Te Uri o Hua and Ngati Pou.555 Neither
witness accepted that Ngati Rangi held primary kaitiaki status over Tuwhakino Block.
That type of thinking, they claimed, was based more on European ideas of ownership
than Maori custom law and traditional associations with the land.
The Environment Court took a narrower view of kaitiakitanga than did the Waitangi
Tribunal in the Geothermal Hearings. It found that the evidence presented in the
Hearings supported a “general acceptance” that the Te Haara family and Ngati Rangi
were the primary kaitiaki for the area of D2 on Tuwhakino Block and that Te Uri o Hua
had provided no evidence that they had continued to assert their claim to kaitiakitanga in
respect of the D2 land.556 This was a major finding in the Crown’s favour. As the
primary kaitiaki, if the Te Haara’s were satisfied that the Minister’s proposal had paid
553
Judge Sheppard, ibid at 518.
Ibid at 519.
555
Statement of Evidence of Garry Hooker for the Friends and Community of Ngawha Incorporated before the
Environment Court, RMA 408, 409/00 and 306/01, 7.
556
Environment Court Decision, supra note 492 at paras 522-523.
554
320
“particular regard” to kaitiakitanga under Section 7 (a), the opposition of other Maori in
the area could be disregarded. That occurs in the next paragraph when the Court states:557
We also find that Ngati Rangi, as the primary kaitiaki, are satisfied that the Minister’s proposal has
particular regard to kaitiakitanga. … We find that … the project has been deliberately designed to
respond to the cultural matters raised by the primary kaitiaki, that it excludes the geothermal ponds
on the site that are valued taonga, and would not interfere with the geothermal system (in respect
of which Ngati Rangi shares kaitiakitanga with other Ngawha iwi, and indeed all of Ngapuhi) in
any way.
b.
The Nature of the Kaitiaki Relationship put forward by Ngati Rangi
The role of the kaitiaki was described by Ben Te Haara as being to ensure that the land is
used creatively to bring harmony, so that kaitiaki look after nature and it looks after them.
In his opinion, using the land for a prison facility was an effective use of the land, as the
Department of Corrections would be working with Ngati Rangi on the rehabilitation of
their people, and particularly their children. He considered the proposed prison to be an
important opportunity for Ngati Rangi to assist with this process of rehabilitation and
reconciliation within the community. The close proximity of Tuwhakino D2 to the
healing waters of Ngawha Springs was also perceived as being of potential assistance to
the rehabilitation process.558 Viewed in this light, Te Haara's actions can be seen as a
means of whakaoho, or reawakening the mauri of the people in the area through the
establishment of the prison in their community.
The main concern of the Te Haara brothers and their Ngati Rangi supporters was that
provision of a site for the protection of Ngapuhi offenders should be located nearby. In
1998 a meeting of twenty-three members of the Ngati Rangi Ahu Whenua Trust, a
landholding trust within the area, had voted in favour of providing land for the building
of a prison. Only three votes were recorded in opposition. The reasons stated by those in
favour ranged from delight at possible economic gains through sale of land to the Crown,
557
558
Ibid at para 524.
Ibid at para 515.
321
to concern for the high crime rate amongst local youngsters. A sale would provide
revenue for other ventures such as tourism, which the Trust was interested in, as well as
easing the burden of backrates owed to the Council, a matter of ongoing financial concern
for the trustees.559
Several of the trustees expressed concern that adults had lost control over children in the
area, including at school. Drugs were considered to be a major problem, with fear
expressed that the children were turning on their parents. The distance relatives had to
travel to visit children in jail in other places was another concern. The Trustees saw the
building of a prison as a positive intervention where healing could be achieved in a
controlled environment within the community, through the provision of education and
counseling. Gordon Te Haara stated that the prison could be a “whare oranga”, or house
of health, which would help the children.
In April 1999, the Trustees met with representatives of Te Runanga A Iwi o Ngapuhi,
who supported the initiative, believing that the prison provided an opportunity to answer
the negative aspects of prisons within communities generally. They viewed active
Ngapuhi involvement in rehabilitation programmes and the education of inmates as
priorities.560
In January, 2000, the Ngati Rangi Ahu Whenua Trustees met with the Minister of
Corrections, to discuss the building of a prison at Ngawha. Several Runanga and Trusts
from throughout Tai Tokerau were also represented. A minute of the meeting records:561
559
Minutes of Meeting of Trustees, Ngati Rangi Trust, held at Palmer and Macauley Offices, Station Road, Kaikohe,
13 February 1999.
560
Minutes of Meeting between Ngati Rangi Ahu Whenua Trust and Runanga a Iwi o Ngapuhi Representatives, held
at Palmer and Macauley Offices, Kaikohe, 19 April 1999.
561
Ngati Rangi Ahu Whenua Trust Report by Bella Tari, 27 January 2000, 2.
322
All Runanga spoke of a Rehabilitative System in support of reducing reoffending. Training,
education, health & social issues were also discussed. More opportunities be given to Maori
towards the prevention of Maori offenders eg; rehabilitative programmes; whanua support
programmes; cultural awareness.
Six Trustees belonging to the Ngati Rangi Ahu Whenua Trust, including Gordon Te
Haara, later resigned from the Trust when the opposition of other owners to the land led
to a resolution to withdraw its availability as a prison site.
Following the resignations, a new committee, the Ngati Rangi Development Trust, was
then established. The Committee included the Te Haara brothers and other supporters of
the prison site being located at Ngawha. In January 2000, a meeting between the Ngati
Rangi Development Trust the Department of Corrections recorded the following vision
put forward by Ben Te Haara:562
“Prison is in the mind”
There are more people outside that are imprisoned.
We must help to set peoples minds free.
We must have buildings that set people free.
Native trees not pines. Programs – Art in the Prison.
My dream – Set them free – it can happen.
Te Haara had stated at an earlier meeting with the Design Team for the Prison that the
“concept of prison must be freedom” based on “our concepts of Local Knowledge”.563 In
order to achieve this, Ben and Gordon Te Haara worked alongside the Department of
562
Minutes of Meeting held between Representatives of Ngati Rangi Hapu and Department of Corrections, Kaikohe,
2 March 2000, 2. Although the meeting is stated as being with “Ngati Rangi Hapu” it is recorded on Ngati Rangi
Ahu Whenua Trust letterhead.
563
Minutes of Meeting held with the Design Team for the Department of Corrections, Kaikohe, 22 February 2000, 3.
Although on Ngati Rangi Ahu Whenua Trust letterhead, the only Ngati Rangi members present are Gordon and Ben
Te Haara.
323
Corrections in formulating the planning of the prison. They perceived their actions as
positive, forward planning and futuristic, being in the best interests of the children of the
area. As such it was also consistent with their perception of the “kaitiaki” role of guiding
the welfare of the wider iwi of Ngapuhi, and, thereby, strengthening the collective mauri
of the group.
The Te Haara’s vision was not shared by others. They were vociferously opposed by
Albert Clarke and Ron WiHongi, who saw the prison as a further negative for Maori in
the area:564
We the Maori people, are saying enough is enough! We want respect from tauiwi in cases dealing
with our taonga. The importance of Ngawha to us cannot be underestimated. How are the
Ngawha Waiariki to survive the interference that is planned to enable the prison to be built?
In the battle between protecting the resources and providing a prison site, the prison site
won. The prison opened on the 5th of May 2005.
(d)
Utu
The principle of “utu” has changed radically in its practical application in the past 150
years. In Section C, it is associated principally with retribution for wrongs committed
against kin. Under Maori custom law as it once existed, a wide range of practices were
associated with “utu”, including ritualised warfare and cannibalism. Today both the
definition of “wrongs” committed against individuals, and the sanctions imposed as a
result of wrongdoing, are governed by the English-based values of New Zealand law.
The New Zealand courts provide a new battleground in which skirmishes between Maori,
and between Maori and non-Maori, take place. Traditional practices such as hapu and
564
Statement of Evidence of Ronald Te Ripi WiHongi before the Environment Court, RMA 408, 429/00 & 306/01, 6
at para 18.
324
iwi warfare, cannibalism and other practices associated with seeking physical retribution
against individuals or groups, have been outlawed. They have been replaced by the legal
sanctions of fines and imprisonment recognised under New Zealand law.
In the absence of the old practices associated with “utu”, in modern parlance “utu” is
used in its broader conceptualisation, as “reciprocity”.565 This abstraction gave meaning
to its past physical application as seeking payback for wrongs against one’s kin and is
based on the notion that all relationships recognised by Maori are two-way. It also
removes any moral aspect of “right” and “wrong”, and “positive” and “negative” from
the intellectual equation.
(e)
Conclusion
Within Tai Tokerau, loss of land in Maori ownership has lead to the abandonment of
traditional practices such as “tuku whenua”, once the hallmark of rangatira authority on
the land. Without land, differentiation between individuals based on whakapapa ranking
alone has significantly diminished. There is a modern tendency to veer away from the
hierarchical relationships of the past, in favour of a more egalitarian approach that
highlights consensus within groups wherever possible, followed by voting, as a means of
finalising decisions. The overall effect of this is that Whanaungatanga, highlighting
relatedness, has replaced Whakapapa ranking based on descent alone, as the principal
determiner of recognised authority under Maori custom law in Tai Tokerau.
The interconnected nature of natural resources and Ngapuhi whakapapa are both
highlighted by the Waitiangi Tribunal in the Geothermal claim. However, the Prison
Hearings demonstrate that fitting Maori custom law into New Zealand’s legal processes
is not an easy task, particularly when the custom law framework is neither agreed nor
565
See J Patterson, “Utu and Balance”, Exploring Maori Values, Dunmore Press, Palmerston North, 116.
325
clear. In such cases, treating tikanga as “non-justiciable” remains the easiest way for
judges to cope with Maori jural concepts within a wider, non-Maori legal context.
Other principles based on whanaungatanga, such as that of showing “aroha” towards
one’s relatives, have also adjusted in order to accommodate modern social circumstances.
In the Prison Hearings the direction taken by the Te Haara brothers, is to work alongside
the Crown in an attempt at reducing the high rate of Maori offending and recidivism
within Ngapuhi.
In both the Geothermal and Prison hearings the concept of Mauri is present in the
activities associated with "Kaitiakitanga" and "Taonga". Whereas Kaitiaki guard the lifeforce of an object or thing, taonga are the precious resources whose life force is being
protected. In this instance, one taonga is the Ngawha Springs resource, while another is
the human community of Ngawha. While some parties are seeking to protect the
integrity of the former from desecration, others are seeking to re-establish the mauri of a
community that has already been severely depleted.
In the Papatupu Hearings covered in Section C, “utu” was portrayed as a practical
principle relating to retribution for offences against one’s relatives. With the outlawing
of many of the practices associated with utu, it has taken on a new, sanitised meaning,
that of “reciprocity”, which highlights the two-way process of all relationships recognised
by Maori. Sanctions for wrongs under Maori custom law are now reliant on moral coercion because actions are “not in accordance with tikanga” as defined by its proponents,
or on the New Zealand legal system forms of fines and imprisonment if they fit within its
definitions of actionable wrongdoings.
326
4.
THE PRINCIPLE OF MANA
(a)
Introduction
In Section B, mana was identified as a substantive concept relating to authority and
power. Authority and power were distinguished in that while power related to the actual
“doing” of things, “authority” referred to permission originating from one of several
external sources recognised under Maori custom law. These sources were identified as
“wairua”, a term used to cover the spiritual source from which all substantive things
arise, “atua”, the deities acknowledged by Maori, “tupuna”, the ancestors to whom an
individual could link by whakapapa, “whenua”, the lands to which one was connected,
and “tangata”, the people with whom one was able to form relationships.
In Section B, both Te Rangi Hiroa and Elsdon Best recognised the importance of “mana
rangatira” within traditional Maori society. Although Te Rangi Hiroa linked mana
rangatira to the “first born” male of a family, Best linked it to “highborn chiefs”
generally. Best also recognised the right of all members of a group to participate in
decision-making, irrespective of the mana attributed to their status. In so saying, he
probably overlooked the position of “pononga” within the group, as captives taken in
battle, who generally had little input into group decision-making. Shane Jones addes a
further gloss to mana rangatira by stating that it could be lost through unprincipled
actions that amounted to the use of naked power, or actions performed without authority.
The upshot of this was that a person of senior lineage without followers and without land,
could no longer legitimately claim to be a rangatira.
In Section C, mana was related to the power exercised by individuals within the group to
formulate systems of resource allocation and disposition within the group’s territorial
domain. In Tai Tokerau, close kin relationships meant that several rangatira often
worked together to operate the tikanga on the land. In the Hokianga region, leaders were
so closely related that their combined territorial influence extended as far as Ahipara.
327
From Hokianga, across to the east coast of Northland, shared whakapapa and the
extensive leadership that it encompassed was encapsulated in the proverb “Ngapuhi
kohao-rau”, or Ngapuhi of a hundred holes.
The main use of mana by rangatira on the land was to ensure that the “tikanga on the
land” was upheld. “Tikanga on the land” is a broad reference to ensuring that the
relationships between people occupying the land remained stable. In order to accomplish
this the links between people and land had to be demarcated within the group. Thus,
authority on the land and responsibility for people went hand in hand.
“Mana” as it applied to the regulation of natural resources was gender neutral, being an
amalgam of several roles combined. Rangatira, kaumatua, tohunga, warriors and
gardeners were all important to the protection and maintainence of group welfare. Each
role was attributed mana and was valued for its contribution toward the overall welfare of
the group.
Several mana-based principles were recognised as important in the formulation of Maori
custom law within Tai Tokerau, in Section C. “Mana tupuna” placed value on the
maintenance of ongoing whakapapa links to the land. Senior lineage within a group was
associated with first discovery, first claim, descent, and continued strength on the land.
“Ahi kaa” described those who maintained these links and safeguarded the hapu
patrimony in the area with their physical presence. “Tuku whenua” enabled land
entitlements to be transferred between members of the group, and resulted in either
“tuturu” title or “aroha” title. While residence supported both types of title, it did not
give rise to a claim of entitlement to land on its own.
Challenges to mana rangatira were evident in the Hokianga Papatupu Hearings,
particularly when Heremia Te Wake attempted to establish new tikanga on the land, in
order to enable him and his followers to bypass the existing leadership authority
exercised by Re Te Tai. The emergence of new leaders and greater sharing of authority
within the group accelerated as more land passed out of Maori customary ownership. In
328
the absence of Raupatu, such challenges were the only means of overcoming a system
that would otherwise have produced an autocracy off the land. It also meant that new
commercial opportunities available to Maori in the area could be better exploited by a
wider range of individuals, without having to first seek the agreement of rangatira.
In this part of Section D, I examine how the claimants in the Ngawha Geothermal claim
and the Ngawha Prison Hearings have fared under the new statutory framework that now
exists over the lands in Tai Tokerau.
(b)
The Statutory Framework of the Geothermal and Prison Hearings
The authority of New Zealand law is drawn from the principles and practices of the
English common law as it developed in England, before being transplanted into
Aotearoa/New Zealand after 1840. The result of this transposition is that the mana that
was once exercised by rangatira, has been replaced by the force of New Zealand law.
The transferal of land out of Maori control has meant that important institutions such as
“mana rangatira”, “tuku whenua” and “ahi kaa”, which once gave practical effect to
tikanga Maori under Maori custom law have either fallen by the wayside, or been
considerably diminished in the face of the new authority on the land, and the strength of
its enforcement mechanisms.
Two main statutory regimes govern the Geothermal and Prison Hearings.
Under Section 6 of the Treaty of Waitangi Act 1975, Maori who believe that they have
been, or will be, prejudicially affected by any policy, practice or action of the Crown that
is inconsistent with the Principles of the Treaty of Waitangi, are able to lodge a claim
with the Waitangi Tribunal. The Tribunal hears claims and make recommendations to
the Crown on ways it can compensate or remove any well-founded prejudices. The
recommendations are (except in limited circumstances not applicable to the two Hearings
discussed), non-binding on the Crown. A series of principles have been formulated by
329
the Tribunal since 1975, and have been formalised as part of general New Zealand law by
the Court of Appeal in the 1987 case of AG v New Zealand Maori Council.566
Part II of the Resource Management Act 1991, sets out the Purpose of the Act and a
series of Principles that govern its application. These are set out below:
Section 5 – Purpose
(1) The purpose of this Act is to promote the sustainable management of natural and physical
resources.
(2) In this Act, “sustainable management” means managing the use, development, and protection
of natural and physical resources in a way, or at a rate, which enables people and communities
to provide for their social, economic, and cultural wellbeing and for their health and safety
while ––
(a)
Sustaining the potential of natural and physical resources (exluding minerals) to
meet the reasonably foreseeable needs of future generations; and
(b)
Safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
(c)
Avoiding, remedying, or mitigating any adverse effects of activities on the
environment.
Section 6 – Matters of national importance
Matters of national importance –– In achieving the purpose of this Act, all persons exercising
functions and powers under it, in relation to managing the use, development, and protection of
natural and physical resources, shall recognise and provide for the following matters of national
importance:
…
(e) The relationship of Maori and their culture and traditions with their ancestral lands, water,
sites, waahi tapu, and other taonga.
Section 7 – Other Matters
Other matters –– In achieving the purpose of this Act, all persons exercising functions and powers
under it, in relation to managing the use, development, and protection of natural and physical
resources, shall have particular regard to ––
(a)
566
Kaitiakitanga
[1987] 1 NZLR 641.
330
Section 8 – Treaty of Waitangi
Treaty of Waitangi –– In achieving the purpose of this Act, all persons exercising functions and
powers under it, in relation to managing the use, development, and protection of natural and
physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o
Waitangi).
The response of Maori custom law, as a self-complete system, has been to absorb the
changes necessary to accommodate the imposition of English law and the new
circumstances faced by Maori post-colonisation, while at the same time maintaining the
basic principles relatively intact. In terms of “mana” this accommodation has produced
two different approaches to claims affecting the Ngawha region, both of which are aimed
at promoting the interests of Maori within the area.
(c)
Ngawha Geothermal Claim
“Mana” does not appear as an independent principle for application in the Geothermal
Report. Neither is it included in the index at the back of the Tribunal’s Report.
It is instead, subsumed under the heading of “rangatiratanga”, in order to bring it within
the statutory ambit of the Treaty of Waitangi Act 1975. This Act requires consideration
of the Treaty of Waitangi and te Tiriti o Waitangi, in order to determine the “principles”
the Tribunal is to use in evaluating claims. Article 2 of te Tiriti o Waitangi states:567
Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu – ki nga tangata katoa
o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia
ko nga Rangatira o te wakamenenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o
era wahi wenua e pai ai te tangata nona te Wenua – ki te ritenga o te utu e wakaritea ai e ratou ko
te kai hoko e meatia nei e te Kuini hei kai hoko mona.
Kawharu Translation
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New
Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their
567
C Orange, The Treaty of Waitangi, Allen and Unwin, Wellington, 1987, 257.
331
treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell the
land to the Queen at a price agreed by the person owning and by the person buying it (the latter
being) appointed by the Queen as her purchase agent.
The Parahirahi C Trust responsible for lodging this claim did so on behalf of ten related
hapu, including Ngati Rangi, Ngai Tawake, Ngati Kura, and Matarahurahu.568 The claim
drew upon close whakapapa and whanaungatanga links between the parties and their
shared interest in the resource. It represented a combination of “mana tangata”, from
throughout the area and is consistent with the sharing of territorial entitlements discussed
in Section C of this study. Combining the mana of local hapu gave greater authority to
the claims of rangatiratanga having been exercised over the broader resource. The
ongoing trusteeship of the resource, for close on 100 years, also reinforced the duties
owed and recognised by local Maori, toward the resource.
The presence of “taniwha” as esoteric minders of the geothermal resource was also
accepted by the Tribunal as a relevant part of tikanga Maori relating to the mana
attributed to the resource and its healing powers by humans. While the healing powers
and therapeutic qualities are referenced to “mana wairua” and “mana atua” as being
“god(s)-given”, taniwha have a human origin, being directly linked to the ancestral mana
of tupuna. Hohepa describes taniwha in the following manner:569
Taniwha are “esoteric minders”, the protectors and guides of ancestors, the protectors of important
harbours, rivers, lakes, streams, and pools, and focal points in Hawaiki. Places of importance and
with immense mana or tapu enhance their mana with the presence of taniwha.
In saying that the mana of a place is enhanced by the presence of taniwha, he is alluding
to the immense human value that has been attached to the place and its status as a taonga
of Ngapuhi. This importance is referenced to the actions of ancestors who possessed
568
569
WAI-304, supra note 491 at 2.
Hohepa, WAI-304, supra note 504 at B25(a), 40.
332
immense mana, because “only ancestors of exceptional mana can create or summon and
control taniwha”.570
Kareariki, the Ngapuhi ancestor who discovered the Springs, was a woman attributed
great mana and tapu. She possessed her own symbols, which linked her presence
permanently to the land and the geothermal resource. In this case her symbol was a
floating log seen moving against the tide on Lake Omapere.571 Another explanation for
the origin of the taniwha Takauere is given by Paengatai WiHongi, who says that
Takauere was a tohunga of great mana and tapu, who when an old man, was burnt in a
fire. He then became the spiritual minder of the geothermal resource.572 Both these
references are to the mana of humans of great authority, which has been invested
permanently in the resource, thus reinforcing its value as a taonga.
At the end of his evidence Hohepa states:573
Ko te mana hoki o Ngapuhi te mea nui, koia nei, ko Te Ngawha me ona waiariki me ona kaitiaki
mai i nga hapu ki nga taniwha he wahanga tapu, he taonga tuku iho.
English Translation
The mana of Ngapuhi is of prime importance and it logically follows that the Ngawha with its
geothermal pools and its minders from hapu to taniwha are sacred to Ngapuhi and are taonga
handed down.
The underlying assertion here is that the authority and power of Ngapuhi that attaches to
the pools should be given pre-eminence by the Tribunal in decision-making, which
requires the balancing of Ngapuhi interests with those of other parties. The resource is a
taonga and is part of the Ngapuhi whakapapa that rests on the land. In this sense “mana”
570
571
572
573
Ibid.
R WiHongi, ibid at A54(a), 7.
P WiHongi, ibid at A54(m), 1.
Hohepa, ibid at B25(a), 41.
333
equates with the combined territorial and ancestral authority of nga hapu o Ngapuhi over
the territory that houses the geothermal resource.
(d)
The Prison Hearings
The statutory definition of “mana whenua” was not in issue in the Geothermal Claim. In
the Prison Hearings there is dispute as to which hapu’s mana ought to prevail as the
“customary authority exercised by an iwi or hapu in an identified area”. However, in
these Hearings where prominent members of Ngati Rangi supported the prison, while
others opposed it, the statutory definition supported the disjunctive approach taken by
supporters of the Prison. Although portrayed as a dispute between hapu, a better view,
based on the closeness of the whakapapa is that it is a dispute between individual family
members, fuelled by outsiders.
A noticeable difference between the Geothermal and Prison Hearings is the disjunctive
nature of the claims put forward by proponents of the prison, and the adoption of a
western legalistic approach that uses the definition of “mana” to isolate both the land of
the proposed prison site, and the authority of those who support the building of the
prison, and then link the two. This strengthens the assertion of seniority of authority and
ostracises other members of the Maori community. In this forum of non-Maori decisionmaking, it is very successful. In a Maori-controlled forum, such manipulation may not
have been so easily achieved.
Hohepa’s evidence in these Hearings is similar to that provided for the Geothermal
Claim. It is reinforced by claims that authority for establishing land rights under Maori
custom law has been overridden by the implementation of Crown “ture” or law. In the
formulation of this Crown derived ture, the Native Land Court (and successive Acts of
Parliament), have carved Ngawha into discrete areas in which “owners” are viewed as
discrete entities controlling everything on and under the land they “own”. 574
574
Hohepa, Prison Hearings, supra note 525 at 6.
334
The take set out by Hohepa for establishing land rights under Maori custom law in the
past is more extensive and detailed than those set out in the 1900s Papatupu Hearings
covered in Section C.575 However, the result of individualisation of title is the same. It
reduced the mana exercisable by rangatira over land and its occupants, and increased the
mana of those who had previously been subject to that authority. In the process “mana
rangatira” as an extensive authority exercised by specific individuals, that included the
right to allocate and dispose of land to others, disappeared. In its absence mana tupuna
took on a new, pervasive territoriality. Mana tupuna became shared by the group as a
whole and exercised by chosen representatives. This is the territorial authority that Maori
claim today, in the absence of absolute ownership. It does not rely on ownership of land
and is more in the nature of a political “sovereign” type power resting on the land. Its
basis is historical whakapapa connection to the land.
(i)
Whakapapa and Mana – The Exclusive Claim by Ngati Rangi to Mana Whenua
and Kaitiakitanga
There are four groups put forward as representing the mana of Ngati Rangi in the Prison
Hearings. The Kaumatua Taumata is an association of elders whose predominant
whakapapa links are to Ngati Rangi; the Ngawha Marae Committee is a local community
committee chaired by Gordon Te Haara, grandson of Heta Te Haara; the Ngati Rangi
Ahu Whenua Trust, is a land trust chaired by Albert Clarke, (whose mother is the older
sister of Ben Te Haara), representing 1,208 current owners of Ngati Rangi land, and the
Ngati Rangi Development Committee, is a committee chaired by Mac Anania, set up to
work with the Department of Corrections and facilitate the establishment of the prison.
Affiliated representative groups are Te Taiamai ki te Marangai, chaired by Andy Sarich,
representing 14 marae and 5 hapu, one of which is Ngati Rangi.
The Ngati Rangi Ahu Whenua Trust, under the chairmanship of Te Tuhi Robust, was
responsible for initial investigations into the building of the prison. In February, 1999, a
575
These “take” are consistent with those identified by Norman Smith in his extensive research into Maori land law.
See N Smith, Maori Land Law, Reed, Wellington, 1960.
335
small group of forty-three owners, including eleven Trustees, met to discuss the proposal
and twenty of those present voted to put the Trust’s land forward as a possible site for the
prison, with three voting against the proposal.576 In October 1999 the Trust meeting
records that a letter is to be sent “to Corrections to lease for a term of 30 years with right
of renewal for initial rent of $100,000.00 per annum plus GST upon the terms and
conditions otherwise agreed between the parties for the 33 hectare site delineated on the
plan which accompanies our registration of interest”.577 In February 2000 a special
meeting of the Trust owners was called, in which it was resolved not to allow the land to
be used as a possible prison site.578 The Trustees saw this as a vote of “no confidence”.
A subsequent meeting held in February records the following.579
Apologies from Ngati Rangi to Peter and all the Trustees at Shareholders meeting 12th Feburary.
Advised Trustees not to resign before Court sitting. Ngati Rangi prepared to mandate Trust to
represent Ngati Rangi. Gordon [Te Haara] had two meetings with Correction[s] re release of news
media statements. Prison going ahead but NRAW Trust not involved. … Discussed option of
continued dialogue with Corrections under a structured hapu organisation. Options left open
pending outcome of MLC hearing.
Early in 2000, several of the standing trustees resigned. They were replaced by a new
committee, chaired by Albert Clarke, that opposed the prison being located on Ngati
Rangi land. In his evidence before the Environment Court, Clarke stated:580
The Trust, as representative of 1,208 tangata whenua with ties to Ngawha Springs, opposes the
location of a prison in the midst of their ancestral lands and waters. The Trust believes the wairua
of Ngawha will be changed forever, and a significant taonga of Te Tai Tokerau destroyed, as a
result.
576
Minutes of Special Ngati Rangi Ahu Whenua Trust Meeting of Owners and Beneficiaries, held at Ngawha
Marae, 13 February 1999.
577
Minutes of Ngati Rangi Ahu Whenua Trust Meeting held at the offices of Palmer and Macauley, Kaikohe, 26
October 1999.
578
Minutes of Ngati Rangi Ahu Whenua Trust Shareholders Meeting held at Ngawha Marae on Saturday, 12
February 2000.
579
Minutes of Ngati Rangi Ahu Whenua Trust Meeting held at offices of Palmer and Macauley, Kaikohe, 22
February 2000.
580
Statement of Evidence of Albert Victor Clarke for the Ngati Rangi Ahu Whenua Trust before the Environment
Court, RMA 408 & 429/00 & 306/01, 7.
336
The Ngati Rangi Development Committee was established after a meeting between
former trustees of the Ngati Rangi Ahu Whenua Trust and other local organisations on 27
April 2000.581 The Ngati Rangi Development Committee and Te Taiamai ki te Marangai
entered into a memorandum of partnership with the Minister for the Department of
Corrections for the building of the Prison.582 In the notes attached to his affidavit
evidence, Wallace WiHongi records the following:583
To my knowledge I am the only non-Ngati Rangi person invited to sign the Memorandum of
Understanding between the Ngati Rangi and the Corrections Department. I am honoured to do so.
I feel that a long and proud tradition of inter-Hapu cooperation should be maintained.
In the meantime the Crown had decided that the Trust land (D1 site) was unsuitable as a
prison site for ecological reasons and bought the land next door (D2 site) from its nonMaori owner instead. The friendly relationship between the Ngati Rangi Development
Committee and the Crown continued, free of any direct link to the land, despite earlier
reservations expressed by Gordon Te Haara in December 1999 that he was “concerned
with the Tikanga and Mana of Ngati Rangi being ignored by the Department of
Corrections”.584
(ii)
Ngapuhi Tikanga vs Bay of Plenty Tikanga
These Hearings set a dangerous precedent for adherents of localised tikanga as the basis
of Maori custom law in that Bay of Plenty tuakana/teina practices, were argued as being
part of current Ngapuhi tikanga, by Gardiner as the Crown’s expert on “Maori tikanga”.
In his affidavit evidence, Gardiner cited the tuakana/teina relationship between Toroa and
Puhi of Tuhoe, as older brother and younger brother as being the basis of his link with
Ngapuhi. The inference to be derived from this association in terms of tikanga Maori, is
581
Minutes of Ngati Rangi Development Meeting held at Ngawha Marae, Thursday 27 April 2000.
Gardiner, supra note 517 at 13.
583
Notes attached to Statement of Evidence of Wallace Wihongi before the Environment Court, supra note 535.
584
Minutes of Ngati Rangi Ahu Whenua Trust Meeting held at Offices of Palmer and Macauley, Kaikohe, 1
December 1999.
582
337
that Gardiner, who is descended from Toroa the older, occupies a position of ascendancy
over the descendants of Ngapuhi who derived their whakapapa from Puhi. The same type
of unequal mana relationship was claimed by Gardiner for Ngati Rangi over other hapu
of Ngapuhi within the Ngawha area, and for Ben Te Haara as the oldest male descendant
over other descendants of Heta Te Haara.
Gardiner’s approach to whakapapa, ignores local context and the developments that have
taken place in Ngapuhi over the past 100 years. It conflicts directly with the unified,
inclusive approach taken by Ngapuhi in the Geothermal claim.
In his evidence, Gardiner isolated the D2 site on which the prison was to be located from
other considerations relating to “taonga” and “kaitiakitanga” affecting the wider,
surrounding area. Human authority over the site was linked to Heta Te Haara, and from
him, directly to Ben and Gordon Te Haara as individual, male descendants. Both
supported the building of the prison, and both were claimed to be authoritative in tikanga
terms, and to hold an overriding authority in discussions relating to the prison. This line
of reasoning effectively downgraded the authority of the Ngati Rangi Ahu Whenua Trust
as existing owners of land, and all others who opposed the prison. Respected kaumatua
from Te Uri o Hua and Ngati Hine were stated to possess only a “general interest” in the
Ngawha area and not the “primary responsibility” exercised by the Te Haara brothers.585
The Clarke whanau from Ngati Rangi, were assigned the position of “teina” to the Te
Haaras, and therefore held to possess lesser speaking authority. 586
In responding to this assertion of Maori custom law, Ngapuhi tikanga expert, Pat Hohepa,
pointed out that following primogeniture and direct descent would place Ngati Rangi as a
group in an inferior position to Te Uri o Hua, as Huatakaroa from whom Te Uri o Hua
descend, is the husband of Maikuku. These two are the parents of Rangiheketini, the
ancestor claimed by Ngati Rangi. Furthermore, the tuakana hapu of Ngati Rangi is Ngati
585
586
Gardiner, supra note 517 at 13, 22- 24.
Ibid.
338
Rahiri, whom they had not consulted, so technically, they were in breach of tikanga.587
Likewise, Ngati Hine are descended from Hineamaru who was the older sister of
Maikuku and they could claim seniority if they choose to follow that whakapapa line.588
A general concern for Hohepa was that vesting mana only in men is not a Ngapuhi
tikanga. A tuakana status that gives a veto power in community to males, goes against
the traditional rights of women and the modern right of everyone to have an equal say in
decision-making. Although men are often selected as leaders of whanau for certain
functions, there is no strict, formal Ngapuhi tikanga that establishes men in the primary
role of leadership. Men and women are of equal importance as ancestral figures. Others
beside Ngati Rangi have to be consulted as they have whakapapa links, which gives them
an equal ancestral right to be heard.589
In the Prison Hearings little emphasis was placed on the views of Agnes Te Haara, the
oldest surviving grandchild of Heta Te Haara. Her son, Albert and granddaughter,
Chanel Clarke both opposed the prison. Chanel describes her own leadership role as a
female, thus:590
While we acknowledge these [male] lines … it often falls to myself as my brother’s younger sister
to assume a leadership role and hence my current brief of evidence for this court. The exercise of
tuakana/teina is a fluid one and while a senior male rank is acknowledged as unchanging, family
dynamics and ones ability and knowledge enable the taking on of a leadership role to be more
flexible, as in my own case. I assume this role as the granddaughter of Agnes Te Haara and in my
capacity as a Ngati Rangi descendant.
Gardiner’s evidence was supported by Ben Te Haara, Gordon Te Haara and Wallace
WiHongi,591 who stated that the supportive relationship between the Te Haara and
587
Hohepa, supra note 525 at 14.
Ibid.
589
Ibid at 19.
590
Statement of Evidence of Chanel Victoire Clarke for the Friends & Community of Ngawa Springs before the
Environment Court, RMA 408/00, 429/00, 306/01, 4.
591
W WiHongi, supra note 583 at 2.
588
339
WiHongi families was over 160 years old. Wallace WiHongi also claimed that he held
tuakana status over his cousin Ron WiHongi. As a kaumatua, he was “mortified by the
activities of my teina Ron WiHongi. His actions are culturally inappropriate and against
what our whanau sees to be tika (correct).”592 Wallace WiHongi stated that Heta Te
Haara was one of the paramount chiefs of Ngati Rangi who was able to make “chiefly
decisions” and that “in keeping with the tikanga and Maori tradition, this mantle would
pass to the eldest male and in this instance that would be Ben Te Haara.” Such a mantle,
he says, gave Ben Te Haara “the ability to guide others in the whanau and Ngati
Rangi”.593
According to Hohepa, the practice of tuakana leading and teina following is not followed
in Ngapuhi where individuals can, and do, frequently disagree with each other openly on
the marae. Neither is there a practice of younger siblings not speaking when older
siblings are present as may be the practice in the Bay of Plenty. Additionally, there is no
rule of exclusion prohibitting women participating in decision-making within Ngapuhi.594
Support for Hohepa's views can be drawn from the fact that the land base necessary to
uphold such rigidity of practice no longer exists in Ngapuhi. That Te Haara dispossessed
his successors of authority over the D2 site when he sold the land to William Earl in
1894, is clearly recognised by the Tribunal in the Geothermal claim. Added to this, the
land trust that represented 1208 Ngati Rangi owners of land whose whakapapa link was
still intact, opposed the prison. These two factors undermine claims that the Te Haara
brothers can continue to make decisions for their people off the land, without their
support. Thus, questions arise as to whether the Te Haara brothers were entitled, as a
matter of Maori custom law, to claim an ascendant position within Ngati Rangi Hapu
based on inherited mana alone, and/or whether the views of their older sister Agnes,
ought to have carried greater weight. It is now widely accepted that leaders are
592
Ibid.
Ibid at 3.
594
Hohepa, supra note 525 at 19.
593
340
spokespersons on behalf of the group and not “for” the hapu and iwi as once may have
been the case.
Ron WiHongi 595 says that the claim by Wallace WiHongi that he is tuakana to Ron “is
partly right and partly wrong” depending on which line one follows. Wallace’s great
grandfather is the elder brother of Meemi Ngare, Ron’s great grandfather. At this stage
the whakapapa relationship favours Wallace as tuakana. However, Meemi Ngare married
Erana Maihi Te Uaua of Ngati Rahiri. She is from the oldest son of Hua and Maikuku.
Through Erana’s whakapapa line, Ron is tuakana to Wallace.
According to Hohepa, this type of tracing of whakapapa, and the confusion it produces, is
precisely what the term “karanga maha” was created to overcome. Today, tuakana/teina
status is neither unconditional nor binding. It is generally applied to age, as a means of
showing respect for one’s elders. Modern Ngapuhi society appears to place far greater
emphasis on “being related” than on any set hierarchy that may formerly have existed
within that relationship. Within Ngapuhi, elders still have the right to speak first and last.
But they no longer have the right to make final decisions, without consent, for the people.
That mana has been usurped by processes in which individuals are assumed to have equal
rights to express opinions.
(e)
The Environment Court did not address issues of “mana” directly. Its
consideration was limited to an examination of whether the proposal adequately
recognised and provided for the relationship of Maori and their culture and traditions with
their ancestral land, waters, waahi tapu and other taonga.596 This was further broken into
issues about battle sites, tuakanatanga, significance of taniwha and kaitiakitanga. The
Crown duty of consultation under the principles of the Treaty of Waitangi was also
considered.
595
596
R WiHongi, supra note 564 at 6.
Environment Court Decision, supra note 492 at para 47.
341
The Court viewed its role under the Resource Management Act to be to identify questions
raised under the statute, hear the attitudes and evidence of the parties, and make its
findings. Much of the evidence, pivotal in terms of Maori custom law, was of little
relevance in the wider statutory context of the Hearing.
The Court accepted without question that there was a need for a prison facility in
Northland and stated that it was not within its jurisdiction to look behind government
policy regarding the building of prisons.597 Neither was the Crown obliged to provide
alternative sites as proposed by the Regional Council. The Court was satisfied that
building, staffing and servicing of the prison would produce economic benefits for the
community and mean that local families would have less distance to travel to visit
inmates. It accepted that the prison would also provide an opportunity for local Maori to
participate in the Department of Corrections’ new integrated offender-management
programme for rehabilitation of inmates from Northland.
The Court made no finding on the issue of “tuakana/teina” because it considered it
unnecessary in the wider scheme of its statutory inquiry. However, in accepting the Te
Haara family and Ngati Rangi as the "primary kaitiaki" for the D2 Block while rejecting
the claim of Ron WiHongi and Te Uri o Hua based on a relationship to the wider area, the
Court effectively upheld the Te Haara claim.
It was difficult for the judge to conduct the kind of bicultural inquiry required in order to
properly address the important issues of Maori custom law that arose relating to Mana in
this Hearing. The issue of tuakana/teina was crucial, as was the importation of tikanga
practices from outside Ngapuhi to resolve issues of Maori custom law within Ngapuhi. It
is accepted Maori practice to resolve issues of tikanga internally. In this instance the
attempt at imposing Bay of Plenty tuakana/teina practices on to Ngapuhi undoubtedly
strengthened the Crown case before the Court, despite the judge’s statements that it was
not necessary in his assessment of relevant matters.
597
Ibid at para 139.
342
At first instance, the Regional Council had found that the whole area was within the
domain of Takauere and that the proposed earth and stream works would adversely affect
the mana, wairua and mauri of Takauere and the mauri of the land and stream. On
appeal, the Crown asserted that these concepts had little modern day relevance to Maori
and that the works would not interfere with the Maori belief in Takauere, or demean it or
its domain.
The Environment Court stated that disputes about taniwha were simply “not
justiciable”.598 As matters of belief, questions about “mythical, spiritual, symbolic or
metaphysical beings” were not capable of physical proof. Nor was the Court compelled
to establish whether they existed.
Although politely phrased, such dismissal of taniwha as Maori belief, overlooks their
significance as an indicator of the importance a particular resource holds to Maori as a
taonga. In the Prison Hearings, Ben Te Haara stated that he had never heard of Takauere,
that taniwha were used by Tohunga as a means of explaining the inexplicable, and that in
this case, “the concept was being used by people for their own purposes”.599 These
statements raise issues of credibility amongst the witnesses. If Te Haara had truly never
heard of Takauere, and Gordon Te Haara was an expert in local tikanga as was claimed
by Gardiner, then either the tikanga education of the brothers was lacking and they were
unaware of the earlier Ngawha Geothermal Claim and its findings, or the objectors were
lying.
In dealing with Takauere, the court confused the need for physical evidence to support
matters of fact and issues of Maori custom law, which are generally accepted normative
and prescriptive standards against which human actions are measured. A better question
to have asked is whether taniwha are really part of established Maori custom law for the
area. That could have been dealt with as an issue of fact, and the answer ascertained
according to the credibility and knowledge of local witnesses and experts. The second
598
599
Ibid at para 445.
Ibid at para 424.
343
question would be, if they do exist as part of local tikanga, what is their purpose and
significance to hapu and iwi? Here the purpose was clearly laid out by witnesses as being
an “esoteric minder”, which indicates that the resource is an important “taonga”. An
additional factor is that persons of mana in prior generations established these taniwha to
guard a taonga of longstanding duration. The next question is then, would be to ask why
the resource is important to Maori? The answer was again very clear from the evidence
– because it is a healing resource. Will the building of a prison adversely affect the
relationship that Maori have with the resource as they perceive it? Again the answer is
clearly set out in the evidence. Ben Te Haara says that using the site to care for those
with needs and helping them to heal would not offend the taniwha if such a manifestation
existed,600 and Gardiner stated that physical changes are unlikely to affect taniwha as part
of the resource.601 Both witnesses considered taniwha to be matters of belief that were
“internal to the mind” but treated them as matters of fact incapable of physical
quantification. The Environment Court and the High Court viewed them as matters of
belief and nothing more but rejected them on the same basis, as being unable to be
physically quantified.
A similar problem arose when the court dealt with whether the presence of a prison
within the geothermal field would be “offensive” in terms of tikanga Maori. It
categorises matters relating to “mana, wairua and mauri” alongside “fear, anxiety, loss of
restfulness and peace”, as “people’s attitudes, and fears, [which] however genuinely held,
have to be assessed objectively, and if unsubstantiated by factors properly cognisable
under the Act, should not influence the decision”.602 These concerns failed to make any
impact on the Court because they do not produce any immediate, practical, physical
effects which can provide “unchallenged objective evidence”.
What is overlooked in the analysis is that the whole of Maori custom law, like Englishbased New Zealand law, is based on ideas, beliefs, values, concepts and principles that
600
601
602
Ibid at para 425.
Ibid at para 434.
Ibid at paras 723-724.
344
are “internal to the mind” and which are not a matter of tangible, factual existence. The
actions of people based on their belief in the law, and the need to uphold its tenets, is
what makes law “real”. There is no such thing as “law” or “ownership” or “rights” but
we speak of them as if they had a real existence because they are a symbolic reference to
actions, events and other things that are considered important. Sometimes, as for
example often occurs with the term “property”, the objects that are the subject of
property-type relationships, are referred to simply as “my property” or “your property”.
Taniwha can be viewed in a similar fashion. They signify an amalgam of relationships,
ancestral links, and hapu affiliations linking people to resources. Thus, Taniwha are very
justiciable as are issues relating to mana, mauri and wairua, if one has the correct mindset
and understands how law, as a universal system for regulating behaviour, based on
beliefs, values, concepts and principles, works.
(f)
Conclusion
Mana remains a fundamental principle underpinning authority relationships recognised
under Maori custom law. Changes have taken place in its application since colonisation,
in order to accommodate the changed circumstances of Maori as part of a wider New
Zealand society. Several of the traditional principles linked to Mana have altered as a
result of land loss. Investing “mana rangatira” in senior whakapapa lines who are
responsible for taking care of tikanga on the land, is no longer feasible. This practice has
been replaced by a broader approach to shared authority amongst Maori that relies on
consensus and choice amongst related individuals. This new approach is assisted by a
modern form of “Mana Tupuna” that retains territorial group authority through ancestral
connections, despite land loss.
The Prison Hearings show that “ahi kaa” as a term used to describe members of a group
who remain in physical occupation of land, as with the Ngati Rangi Ahu Whenua Trust,
will not necessarily prevail in terms of authority, over those who claim senior status
based purely on descent. This is problematic for the development of Maori custom law
and its acceptance in a non-Maori decision-making forum.
345
Mana atua and Mana wairua still exist as part of the ideological framework of Maori
custom law. However, in the Prison Hearings, pivotal information regarding the belief
system on which Maori custom law is based was ridiculed by senior kaumatua and
treated as irrelevant by the Court. That these aspects of tikanga are treated so, is also
problematic for the future development of Maori custom law in a non-Maori decisionmaking forum.
The Prison Hearings show that the authority framework of Maori custom law needs to be
revisited and updated, so that such ridiculing of important aspects of Maori custom law
does not continue. The application of tuakana/teina within Ngapuhi also needs to be
settled for the future. The position of women also needs to be recognised within
Ngapuhi.
In both Hearings it is clear that the judicial authority of colonial bodies such as the
Council, the Environment Court and the other general courts sits above and controls the
extent to which Maori custom law is recognised. While selected Maori principles have
been integrated into the general law of New Zealand, they are now fully subjected to the
norms and worldview of its non-Maori decision-makers.
346
5.
THE PRINCIPLE OF TAPU
(a)
Introduction
In Section B, Tapu was introduced as a substantive principle of Maori custom law, used
widely in pre-European Maori society to regulate relationships of a property nature. As
regulators of relationships, Tapu and Mana worked closely together. Mana provided the
authority necessary to invoke Tapu as a state or condition attaching to people and natural
resources within a group’s territory. A distinction was made between tapu as a “divine
quality” attributed to all things via their whakapapa connection to the Atua, and tapu as a
state imposed by humans as the result of formal dedication processes. The former,
“inherent tapu”, was a value attributed to things in their natural state which, at its height,
could produce taonga status. The extension of inherent tapu to objects that came into
contact with “tapu” people and objects formed the basis of a personal property system of
an exclusive, private nature. The latter was part of a resource management property
regime for controlling human interaction with natural resources. It was upheld by the
institution of “rahui”, which provided for the setting aside of resources for a particular
use or purpose, by individuals recognised as possessing the requisite mana. The result
was a territorial property claim, exclusive to a group, or individuals within the group.
Both personal tapu and resource managament claims were protected by physical and
moral sanctions associated with the principle of “utu”.
In Section C, the practices associated with tapu as a jural concept, as recounted by Tai
Tokerau rangatira in a selection of Papatupu and Native Land Court hearings in the late
1800s / early 1900s, was outlined. Personal tapu accompanied a rangatira throughout his
or her lifetime, for as long as they retained their rangatira status. The personal belongings
of rangatira and tohunga and the objects with which they came into contact were also
considered to be “tapu”, and therefore, off limits to others. Places associated with the
birth, death and burial of rangatira and tohunga were considered to be highly tapu and
therefore restricted from ordinary use.
347
As a device for regulating resource relationships, the institution of tapu made it possible
to restrict access and use of resources such as trees, birds, huke roi, fishing pools and
other resources. Thus it could be used to preserve the mauri of natural resources and to
restrict access to resources whose mauri was in need of regeneration. It also served as the
basis of broad territorial claims to areas of land and sea as being the exclusive “property”
of one group or another. Both the laying of tapu over natural resources, and its removal,
required the authority of a rangatira or tohunga.
In this part of Section D, I will examine the use of Tapu in the Geothermal Resource
claim before the Waitangi Tribunal in 1992, and the resource consent hearings for the
building of the prison at Ngawha in 2002.
(b)
The Geothermal Claim
The concept and principle of tapu is not a central consideration its own right, in this
claim. It is used instead, as a supporting principle in discussions about “Taonga”,
“kaitiakitanga” and “rangatiratanga”. These are modern concepts that clearly fall within
the ambit of the Tribunal’s statutory jurisdiction under the Treaty of Waitangi Act and the
Resource Management Act as set out earlier in this Section, in the discussion concerning
“Mana”.
In this Claim the primary use of “tapu” was as an indicator of the value that Maori
attributed to the Ngawha geothermal resource. Kaumatua, Manga Tau603 stated that the
resource was given “hei oranga mo te tangata”, for the well being of humans. Ron
WiHongi, set out a wide-ranging list of the various ailments that had been cured through
immersion in the therapeutic waters of the Springs over the past 150 years, and described
the resource thus:604
603
604
M Tau, WAI-304, supra note 491, A54(l) at 1.
R WiHongi, ibid at A54(a), 1, and supra note 536 at 58.
348
He taonga tena, e tuku iho e te Atua, kaharawa ki o matou Tipuna, e tapu ana i te mea, i haeremai i
te Atua.
It is a taonga, handed down by the God(s) almighty to our ancestors, it is tapu because it comes
from the God(s).
The presence of missionaries in Tai-Tokerau Maori society since the early 1800s means
that most Maori now profess to be Christian. The incorporation of Christian thinking and
values into Tikanga, and the ability of older Maori to merge the two without any apparent
concern for inconsistency, is a notable feature of Tai-Tokerau society. The result is that
either from a Christian or Maori view (and the distinction is often unclear), Ngawha
Springs is viewed as a sacred gift from the spiritual realm.
Accordingly, in WiHongi’s view, kaumatua had a continuing duty, which they had
upheld over the centuries, to look after the taonga for future generations of humankind.
This sentiment was repeated by the other kaumatua in their evidence. In observance of
this duty, Graham Rankin claimed that “the healing powers, god given, are sourced deep
within our Mother Earth. Any interference in that spiritual source is a desecration of our
taonga”.605 Thus he sought to protect the mauri of that taonga from interference.
Drilling of the resource was strongly resisted by the Trustees. Twinnie Padlie related
how the waters of the Springs had become cooler since drilling of the wells in the area606
and stated that the Springs were “too tapu to allow any development”. Kairewa Marsh
held that exploitation of the resource had to be resisted because “if they start drilling
holes in the thing the whole life – the “Ha” – or the value of these waters will be lost.607
As above, this reference to "Ha" is to the need to protect the mauri of the resource from
605
606
607
G Rankin, WAI-304, supra note 491 at A54 (q), 2.
T Padlie, ibid at A54(c), 1, 2.
K Marsh, ibid at A54(d), 2.
349
violation. According to Marsh, mining in 1927 and 1928 had already seriously affected
the springs by altering the colour and temperature of the water:608
All those things are proof to me that our springs and the hot water under the ground the companies
want to exploit now … if you touch one, you affect the other. Our sacred Ngawha are too tapu to
us, for us to allow any development. It is a place of healing. … It has been said, “Ko te Ngawha te
kanohi o te taonga, engari ko tona whaumanawa, ko tona mana hauora, no raro”. (Ngawha is the
eye of the taonga, but its heart, its lifegiving power is underground.)
William Dalton summed up the view of local kaumatua when he stated:609
I would hope that the way the pools remain forever that they have for centuries been, a haven of
cure for the ill, the aged, the crippled and in the spirit of the past, regardless of your station in life
or race. Till eternity, I hope.
In this Hearing, Tapu clearly relates to the value that the locals place on the geothermal
resource as providing natural healing. They want to preserve it in its natural state. The
only way they can see this being achieved is to have their “ownership” of the resource
recognised. As owners, their chances of restricting actions that might damage the mauri
of the resource and thereby diminish its life healing properties, would be enhanced
considerably.
The entire discourse based around “tapu” in this Claim, relies on the acceptance of a
Maori worldview and ideology as having value and relevance within a system of law that
is dominated by European thinking. The Tribunal accepted the evidence and the Maori
worldview put forward by the claimants but then overlaid it with a common law
framework of thinking within which ownership of the geothermal resource was viewed as
running with the land. Despite the immense value the resource held for Maori it was not
accepted by the Tribunal as being a discrete, self-contained entity, severable from the
land. Neither were local Maori viewed as having a greater interest than any other owner
608
609
Ibid at 3.
W Dalton, ibid at A54(g), 1.
350
of land above the resource. The collective interest of Nga Hapu o Ngapuhi in the
geothermal resource that had once existed, based on rangatiratanga, had been lost when
Heta Te Haara had sold the land, thereby completely disenfranchising the associated
Hapu of control of the underground resource as well.
(c)
The Prison Hearings
In the Prison Hearings, Hohepa demonstrates the distinction between “tapu” as a value
statement about the importance of a resource to Maori, and “tapu” as a human centred
institution for restricting the use, access and control of resources. At page 10 of his
evidence he says, “Ngawha Springs were joined to our tapu springs below the Rangitoa
burial caves … [which were] used for washing the skeletons of ancestors, and were
therefore unusable for bathing in”. By way of contrast he then adds, “[but] Ngawha
Springs were not tapu, nor was the water for removing tapu”. In both statements “tapu”
refers to being “off limits”. In the first statement, the restriction is inferred by activities
associated with the burial of the dead. The second reference to Ngawha Springs being
“not tapu”, is a reference to their unconstrained availability for use by all members of the
community. In both cases the resources were of great value to humans, but for different
reasons. The Rangitoa site protected ancestral connections to the land, while the Ngawha
resource protected the spiritual and physical well being of the living.
The protection of the relationship of Maori with their “waahi tapu” is covered under s6(e)
of the Resource Management Act. Gardiner, in his evidence, states that no “waahi tapu”,
exist within the confines of the area of the proposed prison site. He refutes the claim
made by the objectors, that a battle within the wider general area could extend the
application of “waahi tapu” beyond the original site. In this he is supported by Wallace
WiHongi, who says that the Tuwhakino block is not a waahi tapu. WiHongi states that
his elders:610
610
W WiHongi, Prison Hearings, supra note 583 at 4.
351
were very particular about land and its state … Tapu land was identified and known to all people of the hapu.
… Tapu also can be removed and I have seen this in my time. … If Tuwhakino was tapu our tupuna would
have told us. The hapu have had free access to this land (Tuwhakino) without any need to participate in noa
activities. Accordingly it cannot be tapu.
The difference in the extent to which the land is viewed as tapu by local Maori, is
reflected in the different historical roles taken by those with authority within the region.
The trustees of the Ngawha Springs remain true to their original duty of protecting the
inherent “tapu” nature of the Springs for future generations. However, by way of
contrast, Heta Te Haara, once he became individual owner of the entire block in 1874,
asserted his mana by selling the entire 1086-acre, Tuwhakino Block.611 In the Prison
Hearings, the Ngawha Springs’ trustees continue to perform their traditional duty of
protecting the mauri of the Springs resource, while the Ngati Rangi proponents of the
prison are motivated by other concerns. They are responding to the human problem of a
high crime rate within the local Maori community, and raise the spectre of kaitiakitanga
under the Resource Management Act, in order to achieve an active involvement in the
housing and rehabilitation of Maori offenders inside the area. Thus they seek to
strengthen the mauri of the community through the establishment of a prison within their
community.
In laying down his approach to the Resource Management Act, Wild J, stated that
compromising the relationship of whanau, hapu and iwi would not automatically point to
an adverse effect on the environment under the Resource Management Act.612 The term
“environment” was viewed restrictively as relating to “natural and physical resources” as
set out in Section 5 of the Act. Furthermore, the matters contained in Part II of the Act
were “criteria” for consideration and not “effects” under the Act.613 The impact of this
distinction is that they are background assessment standards reliant for weighting on the
values held by the decision-maker, rather than matters of substance that have to be given
overt recognition under the Act, such as "noise effects" and "traffic effects".
611
WAI-304, supra note 491 at 22.
High Court Decision, supra note 492 at para 26
613
Ibid, para 27.
612
352
The Environment Court had found that the D2 prison site did not contain any urupa sites,
and that the Crown had made sufficient provision with Ngati Rangi, for the protection of
two geothermal lakes and any human remains that might be found during its works
programme. 614 In his view, Sheppard J, found that the isolation and protection of specific
physical features on the land was sufficient to satisfy the requirements of Sections 6 and 7
of the Resource Management Act.
Of more concern to Maori in this case, as a matter relating to Maori custom law, is the
categorising of Taniwha as “spiritual and metaphysical values” relating to beliefs that are
beyond the purview of the Court. In the High Court, Wild J stated that “physical works
do not interfere with beliefs”.615 He also asked himself the question, “In practical terms,
how could the Minister or the Court provide for the relationship of some Maori to a
taniwha, when the relationship is within their [own] control?”616
Outright rejection of taniwha by a system of law that openly admits to relying on “legal
fictions” to hold itself together and give it coherence, points to a lack of understanding of
the purpose and significance of symbolic referencing outside of an English language
framework. It also signifies a lack of acceptance of Maori custom law as a complete
system of law and an unwillingness to properly engage with it as such.
One way around the difficulty faced by Wild J, is to find out what the relationship
between Maori and Takauere requires in terms of its physical application within the area,
and then the extent to which the works adversely affect those requirements. The question
is, will putting a prison on top of a geothermal resource that is recognised by Maori, and
accepted by the Crown as being of great significance, interfere with the existing Maori
relationship to the Springs resource? In this Hearing it is clear that it will. If so, to what
extent? Are those concerns able to be accommodated? Such an inquiry would not do
away with the need or desirability for the judge to exercise his or her discretion, or force
614
Ibid, para 31.
Ibid, para 31.
616
Ibid, para 31.
615
353
a result that favours the Maori objectors. The asking of these questions may have led to
the same conclusion that was reached in this case. It is the way that important aspects of
Maori custom law are treated as mythical, and the failure to truly engage with Maori
custom law concepts, that is problematic in these Hearings.
In Section A of this thesis, the need for a better understanding of Maori
conceptualisations of land and Maori custom law associated with lands by the judiciary
was identified as an essential requirement for the better administration of New Zealand
law. In 2002 the question is – How far has judicial understanding in the general courts
progressed since that time? That many Maori find the placement of the prison in such
close proximity to the Springs objectionable is evidence that the prison interferes with the
relationship between Maori and the Springs. While the Council (which had a Maori
commissioner as one of the decision-makers) recognised this, the Environment Court
stated that the Act and Court are creations of the Parliament of a secular state, which
“does not extend to protecting the domains of taniwha, or other mythical, spiritual,
symbolic or metaphysical beings”.617
The conception of a taniwha as a way of emphasising the importance of the resource
(phrased in terms of its tapu, mana and wairua) – and the mana that attaches to the
resource itself and those who guard it, are matters capable of being judicially recognised
if the court chooses to view them as a legitimate part of Maori custom law processes, and
Maori custom law as a valid part of the judicial lawmaking process.
As a practical matter, if a prison had to be located in Northland, there may well have been
locations further from existing taonga sites, than Ngawha. While the Council recognised
this, both the Environment Court and High Court held it to be outside their jurisdiction.
They were, nevertheless, satisfied that the prison authorities had recognised and provided
for the relationship of Maori with their ancestral lands, particularly the prison site. 618
Wild J stated that there is no “objective” right or wrong as to whether it is offensive to
617
618
Environment Court Decision, supra note 492 at para 439.
High Court Decision, supra note 492 at para 31(d).
354
establish a Prison in the Ngawha district. “If some Maori remain offended, that is
regrettable. But they do not have a veto, and we find no basis for their sense of affront to
warrant influencing the decision in these proceedings.” 619
As a matter of procedure, the most revealing aspect of the High Court Hearing in this
case occurred outside the parameters of the substantive case. At the end of his judgment,
and having dismissed the appeal, Wild J., unconsciously perhaps, politely reminded the
appellants that Pakeha control the legal forum and the protocols that dictate acceptable
behaviour:620
I appreciate that this will be a disappointment to the appellants and their supporters who traveled
from Northland to Wellington to listen to their case being heard. I noted and appreciated their
presence in Court, in particular the karakia [prayer] they offered on each of the two mornings of
the hearing. However, and for the future – the Court asks that karakia only be offered with the
Judge’s consent, sought and granted beforehand. That did not occur on the first morning. To ask
demonstrates the Courtesy and respect which I am sure the appellants would expect of visitors to
their marae.
Thus, Maori remain visitors to the Pakeha courthouse, a forum in which some aspects of
Maori custom law will be accepted while others will be set aside as having no place
within a New Zealand legal system.
(d)
Conclusion
The use of “Tapu” as an indicator of the value that Maori attribute to natural resources as
“taonga”, and its use in seeking protection for the mauri of resources, is still part of
modern Maori custom law. However, it is no longer accompanied by the co-ercive force
of authority that existed before the English common law was introduced into
Aotearoa/New Zealand after 1840. The power once exercised by rangatira under the
mantle of “mana rangatira”, has been replaced by a system of New Zealand law that has
619
620
Ibid at para 56.
Ibid at para 80.
355
its own set of values, concepts, and principles which set the framework within which it
operates. Within this framework, Maori custom law is not well understood, accepted or
viewed as a self-complete system of law. Once matters are subjected to litigation, Pakeha
courts and judges control the application and extent to which tikanga Maori and Maori
custom law is recognised under New Zealand law, in accordance with the beliefs,
concepts, principles and rules of tikanga Pakeha.
356
WAHANGA TUARIMA – SECTION E
THESIS CONCLUSION
357
THESIS CONCLUSION
(a)
Introduction
In this thesis I set out to identify key concepts of Tikanga Maori (Maori custom law) in
Tai Tokerau, past and present that could form the basis of a coherent framework for a
modern system of Maori custom law. In order to do this I have examined the application
of four concepts that I believe are key principles and main determiners of Maori custom
law, in three sets of Maori evidence taken in judicial hearings set 100 years apart. The
Hearings all took place in the mid northern region of Northland known as Tai Tokerau.
The concept of Mauri introduced in Section A is also included in Section D, where it
emerges as a consideration in relation to Kaitiakitanga and Tapu.
There has been a lot of change in the application of Maori custom law principles within
the area. This is the result of three related occurrences – colonisation by Europeans,
mainly English, from the 1700s onwards, the implementation of the English common law
as a universal system of law throughout New Zealand, and the massive loss of land from
Maori control as a result of implementing this new system of law. This study has focused
on unraveling the fundamentals of Maori custom law as it once existed, has altered, and
continues to develop in Tai Tokerau.
(b)
Whakapapa
As a custom law principle, Whakapapa provides a broad description of Maori custom law
as an independent system of law based on an amalgam of beliefs, values, concepts and
principles that can be organised into a coherent intellectual framework. It can also be
viewed more narrowly as a practical device for defining territorial land rights in precontact Maori society. Both are important, the former being dealt with in Sections A and
B of this study, the latter in Sections C and D.
358
In the 1900s, when kaumatua were providing evidence of customary holdings before the
Papatupu Block Committees and early Native Land Court, whakapapa held sway as the
dominant determiner of all land entitlements held by individuals. At that time a system
of hierarchy existed between members of distinct groups living together on the land,
based primarily on descent lines. Rangatira status was determined through descent from
the senior founding family on the land and passed to successive generations of the same
bloodline. Permanent or “tuturu” authority was anchored to the land through the
maintenance of continuous ancestral connections to the land, past and present.
The role of rangatira was accompanied by “mana rangatira”, the recognised authority to
make decisions concerning other people on the land, as well as to determine relative
entitlements of individuals to land and resources within the group’s territory. Those who
possessed this authority, led the group in decision-making on the land. The welfare of a
group depended on strong, durable leadership and the word of a rangatira, once given,
was considered binding.
The principle task of the rangatira was “hei kai whakahaere i nga tikanga i te whenua” –
to look after the tikanga on the land. The primary responsibility was to maintain the
welfare of those under his or her leadership. In areas where families were stable on the
land for several generations, siblings often shared this role in successive generations. In
Tai Tokerau, where small, related groups, each with its own leadership was the norm,
women also took the role of rangatira in matters concerning the land. Should a group
became leaderless, the elders from within the area would appoint a person to take on the
role of “rangatira” for the leaderless group and by agreement, invest that person with the
necessary mana for that role.
100 years later, the Hearings concerning the Ngawha geothermal resource and the
establishment of a prison in Ngawha, occur in an different context, where national
development needs mean that the overlay of New Zealand law on traditional Maori lands
and territority is unable to be avoided. This law has its own set of attendant beliefs,
359
values, concepts and principles from which it formulates standards by which to assesses
behaviour and regulate relationships to the land. It also has a set of judges, most of
whom are non-Maori, unable to speak Maori and whose piece-meal knowledge of tikanga
is being gained "on the job" on a case by case basis.
In the Geothermal Claim, Whakapapa is used by Maori to identify all those who are able
to claim ancestral entitlements to the area under claim. In this claim, no single individual
or family claims to be the holder of “mana rangatira” or “mana whenua” for the area,
based on senior Whakapapa. Instead, the concept of “mana tupuna” is broadly deployed
to highlight collective descent from Rahiri and Kareariki in order to identify all those
who hold a potential interest in the Ngawha geothermal resource. Claiming from
ancestors this far back broadens the application of Whakapapa to include all those with a
potential interest in the geothermal resource and highlights their relateness.
By way of contrast, in the Prison Hearings, ten years later, Whakapapa is once again
narrowly argued as producing an unbroken line of authority in the descendants of one
family, that of Heta Te Haara. Te Haara had been granted sole title to the Block being
considered in 1874 and within twenty years had sold the entire Block out of Maori
ownership. Traditionally, rangatira who relinquished their land base, or whose land base
was taken by conquest, lost their mana on the land, thus depriving their descendants of
the ability to claim superior speaking rights for the land. In this case, although Te Haara
had sold the land, his descendants successfully argued that they had retained greater
authority to speak for the land as its “kaitiaki”, than any others in the area.
This attempt at applying an old hierarchical system of authority in the face of such
radicallychanged circumstances, highlights the lack of an alternative Maori leadership
structure in areas like Tai Tokerau where most land has passed out of Maori ownership.
This lack of leadership has been exacerbated by the existence of new, non-Maori sources
of power on the land after 1840 and the willingness of Maori to accept those new forms
of authority. In the Prison Hearings, leadership in the Anglican Church and the
pervasiveness of Christianity throughout the area, is probably as much a factor for
360
encouraging compliance by Maori as the enforcement powers of the New Zealand
judicial system.
Issues relating to whakapapa and hierarchy, are best resolved by Maori. Maori currently
lack a Maori judicial forum with the recognised authority and power to formally
adjudicate how issues of conflict between Maori are to be resolved. The authority and
power once attributed to the role of rangatira through inheritance has diminished
significantly in Tai Tokerau. Although respect for kaumatua and kuia based on age
alone, still persists, their status is now derived largely from their ability to speak te reo,
ceremonial value and from being holders of whakapapa histories, all of which are vital to
the continuation of Maori society. The leaders of modern Maori society must, however,
also possess the skills and experience necessary to deal a modern, beauracratic, world.
At an institutional level, the Maori Land Court adjudicates issues relating to Maori
freehold land, the Waitangi Tribunal deals with grievances under the Treaty of
Waitangi/te Tiriti o Waitangi, and the general Courts oversee both. The lack of a Maori
final decision-making body means that Maori remain reliant on European courts to settle
internal disputes. The judges in those courts are not trained in tikanga, and many show
little tolerance for it as part of their decision-making role. This undermines the
application of tikanga within the area, and Maori custom law generally.
(c)
Whanaungatanga
Maori custom law developed as a series of kin-based responses to maintaining a settled
living pattern on the land. With ongoing loss of control of land after colonisation, many
individuals lost their direct links to land through alienation by their leaders. Without a
land base, group membership became precarious and urban drift a necessity for survival.
The adaptive device used by Maori to counter this physical severence from the land was
to merge the principles of mana tangata and mana tupuna, in order to formalise descent
from one tupuna for all time and irrespective of current land holdings. In Ngapuhi that
tupuna is Rahiri. While traditionally, identity was based on whakapapa links to named
361
tupuna and ongoing possession of land, today the reverse is true. Group identity is now
commonly accepted as being by virtue of whakapapa link to a named ancestor first, and
ongoing residence within a territory, second.
As a result of this change, collective group identity has expanded into a broad, territorial
concept anchored by territorial landmarks big enough to sustain a wide range of formerly,
distinctive groups. In Taitokerau many smaller hapu have, sometimes unwillingly, been
absorbed by larger group affiliations. Resistance to this pattern is shown in the Prison
hearings, where members of Ngati Rangi who support the prison being built, single
themselves out as group leaders and seek to re-establish their dominance by re-asserting
their whakapapa lineage. At the other end of the spectrum, the Geothermal Hearings
show a shift away from the individual authority once enjoyed by rangatira to a broader
concept of authority being invested in the group as a whole, with chosen, mandated
leaders. The two Ngawha Hearings illustrate the concertina approach achieved through
employing either the Whakapapa principle or the Whanaungatanga principle. It
exemplifies the flexibility of application of both principles and their ability to be
extended and narrowed in order to meet the challenges of modern society.
The concept of Aroha is still present within Tai Tokerau society, although with the
demise of the institution of "mana rangatira" its application has changed considerably and
it is no longer associated with tuku whenua. The Resource Management Act has given
some recognition to the principle of Aroha under the guise of “Kaitiakitanga”. In the
Geothermal Hearings the principles of aroha and atawhai were applied by the Trustees of
the Ngawha Springs as a land-based principle, in their acceptance of responsibility for
protecting the Springs resource and the therapeutic qualities of its mauri from
interference. A separate responsibility was undertaken to the users of the Ngawha pools
from within Ngapuhi, New Zealand and overseas. In the Prison Hearings, on the other
hand, the Te Haara whanau argued kaitiakitanga only as a human-based principle focused
around the present needs of the community. Thus, the primary responsibility was to
Ngapuhi children who had fallen foul of the law, and the desire to rehabilitate them close
to home was paramount. In order to achieve this, the leaders of Ngati Rangi were willing
362
to work alongside the Crown to build a prison in which they might be able to assist in reestablishing a human community with a healthy mauri.
The concept of “mauri” is evident in the Geothermal Claim and on both sides of the
Prison hearings, as the life force associated with the things that are considered to be
important taonga, whether land resources or people.
The concept of utu, once a major part of Maori custom law as a means of enforcing its
principles through exacting physical sanctions, is no longer extant. It has been replaced
by the enforcement mechanisms of the New Zealand legal system. Thus a major part of
Maori custom law, the control of penalties for wrongdoing, is no longer under Maori
control. In some respects, this is less problematic for Maori than at first seems apparent.
In a modern society, ritualistic eating of one’s opponents is hardly an appropriate remedy
for wrongdoing. What is problematic, is the lack of opportunity for Maori to create their
own modern definitions of offences, develop appropriate remedies for those offences, and
create sanctions that are enforceable within New Zealand society.
(d)
Mana
The distinction between “power” and “authority” remains crucial to any appraisal of
mana as a substantive principle of Maori custom law. While Maori custom law can still
claim to possess authority within Aotearoa/New Zealand, because Maori continue to
argue its principles amongst themselves and in non-Maori judicial forums, it currently
lacks the infrastructure and cohesion necessary to impose itself as a modern alternative to
the New Zealand legal system. Reliance on the New Zealand legal system after 1840, has
stunted the development of Maori custom law beyond being a broad association of
principles with an assortment of associated values. It has to develop further if it is to be
effective in modern Maori and New Zealand society, and be able to compete with
English-based law.
363
The Mana accorded to Wairua and Atua is part of the mindset against which Maori
custom law achieves cohesion as a system of law. Mana Tupuna, Mana Whenua and
Mana Tangata, on the other hand, are physical attributes of a temporal nature that can be
practically employed in day-to-day living on the land. However, the combination of roles
and statuses attaching to the traditional positions of Rangatira, Tohunga, Kaumatua and
Kuia, Warriors, Gardeners and Pononga, that were once held together by Maori custom
law, no longer exist as a coherent formation on the land. The gap that this has produced
in Maori society needs to be acknowledged and its ramifications in terms of Maori
custom law dealt with.
Some of these are obvious. The individual mana accorded to rangatira by virtue of
whakapapa descent and leadership ability, and the institutional practices that supported it,
such as “tuku whenua” and the provision of “tuturu” and “aroha” entitlement to land,
have now gone. Thus, a large part of the job of the traditional rangatira role is also gone.
It has been replaced by leadership that is not primarily drawn from land affiliations or
seniority of whakapapa but which is dependant on mandate and continuing popular
support instead.
Many of the traditional practices associated with the Tohunga have also vanished,
although some recognition is given to experts with knowledge of Maori customary
practices, under the New Zealand legal system. The role of Kuia and Kaumatua survives
but is largely a ceremonial role accorded to elders as custodians of hapu and iwi history.
It is without the authority it once possessed to make decisions and exercise control over
the younger generations as “teina”. The role of Warrior, protecting the hapu and iwi
territory, has also gone, its remnants being absorbed by the New Zealand army, and
football field and ceremonial renditions of Haka. The role of Gardener has been
overtaken by modern technology. Maori, like everyone else, now buy groceries from the
supermarket. Thus the feel for the land that is “turangawaewae”, has become an
emotional attachment to ancestry rather than the direct physical link to the soil that it
once was. Finally, the descendants of Pononga, once referred to by Te Tai as his “iwi
364
mokai” or “humble servants” are now quite entitled to take up their former leadership
roles once again.
Despite all these changes, Maori custom law as a self-complete system of law, still
retains its authority on the lands within Tai Tokerau. Why? Because recognition of the
foundational principles set out in Section B of this study, still forms the basis of all
arguments concerning the application of tikanga and custom law by Maori, whether on
the marae, or within the New Zealand courts. However, the mana of the New Zealand
legal system as a competing authority on the land, together with the sanctions it is able to
impose, cannot be ignored. Without the ability to create and enforce its own sanctions,
Maori custom law is reliant on political pressure to achieve its aims, or the atawhai of the
New Zealand legal system when its aims and principles can be aligned with those of
Maori.
(e)
Tapu
As a concept of Maori custom law, tapu had two main applications. First, tapu was a
natural state or condition attaching to people and other things by way of their whakapapa
connection to the Atua and ultimately, to the Wairua. That relationship meant that all
objects possessed inherent value. The degree of inherent value attributed to people was
dependent on their status within the group, with rangatira and tohunga being attributed
greater tapu than other members of the group. This personal tapu was extended to objects
with which rangatira and tohunga came into contact. The respect for the tapu of rangatira
and tohunga restricted those objects from being handled by others, and in effect, created
an individualised system of exclusive personal property.
Today, rules relating to the extension of personal tapu, once associated with rangatira and
tohunga, have been replaced by English common law rules relating to privacy and
individual rights that apply to everyone. Although some practices relating to personal
tapu are still upheld by Tai Tokerau Maori, the automatic extension of tapu to objects
touched is not. Maori society generally, no longer recognises the power that “rangatira”
365
and “tohunga” once possessed, or perceive modern functionaries performing similar roles
as carrying the same degree of inherent tapu. Today, tapu, as a value attributed to Maori
individuals performing spiritual rituals is linked to the role and not to the individual. It is
temporary and only of short duration.
Tapu as an inherent value relating to the mauri of natural resources, and the metaphysical
beings that were used to portray and convey that importance to successive generations, is
also still very much alive within Tai Tokerau. Both the Ngawha Geothermal and Prison
Hearings are filled with “esoteric minders” linking the past to the present. While the
Waitangi Tribunal accepted Maori principles of custom law such as mana, tapu, wairua
and mauri without difficulty, the Environment and High Courts had difficulty
understanding their relevance to modern judicial decision-making. Thus, in the Prison
hearings, important aspects of Maori custom law were set aside as metaphysical, spiritual
and emotional responses that were incapable of objective quantification.
A second traditional use of tapu was as an administrative device for restricting resource
use and availability within terrritories. In this sense “tapu” referred to the state imposed
as a result of formal dedication by a rangatira or tohunga, the effect of which was to
restrict the use of resources to particular people of for particular purposes.
This process of resource allocation has been replaced by English common law concepts
and principles that are backed by the enforcement procedures of the New Zealand legal
system. While Maori still carry out traditional practices of establishing rahui within their
own hapu and iwi territories, the New Zealand legal system does not provide for broad
recognition of these practices as part of New Zealand law. Statutory rules and regulations
issued by central government have reduced the legal application of “tapu” to one of its
manifestations, that of “waahi tapu” a term relating to isolated sites, usually associated
with death and battles, that Maori can prove were historically valued by their ancestors.
The establishment of permanent rahui by rangatira was once widely used to assert group
territoriality. It was also used to end disputes over resources. The process was reliant on
366
the laying and lifting of tapu for its fulfilment. This in turn was reliant on the mana of the
tohunga and rangatira and the enforcement mechanisms recognized within Maori society.
With the decline of the rangatira and tohunga roles, and the failure to replace those roles
with modern equivalents, the New Zealand courts have taken over the role of arbitrating
Maori disputes. The difficulties they face in reconciling and balancing two sets of
cultural norms is apparent from the cases cited in this Study.
(f)
Where to for Maori Custom Law?
Although the foundational principles on which Maori custom law once operated are still
extant, major changes have occurred in Tai Tokerau society in the last 150 years. Maori
society has adapted to these changes by modifying the application of these principles to
enable retention of identity and links to land in the face of great change.
It is clear that Maori Custom Law has lost its prior position as the supreme law of
Aotearoa/New Zealand. Although it has authority, its power is currently restricted.
However, it remains as a secondary system of law operating on the land, whose existence
is tied to the continued existence of Maori as a distinct group of people, within
Aotearoa/New Zealand.
Maori custom law is currently a loose assemblage of concepts and principles, which lacks
the organisation and infrastructure necessary to operate as a coherent, modern system. If
it is to survive into the future, it needs to be better understood as a coherent system of law
by Maori and the wider New Zealand society. The application of its principles in modern
society also needs to be monitored and developed. This study is a very small step in that
direction.
In this study I have focused on a very small geographical area for reasons of safety, and
because it upholds my belief that Maori should first study their own, and wait for an
invitation to venture into other hapu and iwi rohe. However, despite this, I also believe
367
that many of the issues raised by this study are of wider concern to Maori in other parts of
Aotearoa.
My conclusion is that the principles of Whakapapa and Whanaungatanga provide the
skeletal framework of Maori custom law, over which the principles of Mana and Tapu, as
substantive jural principles can be extended and narrowed and then applied to different
circumstances to provide a variety of practical outcomes. The belief system from which
these principles emerge is Wairuatanga. And the ultimate purpose of Mana and Tapu
combined is to protect the Mauri.
Na reira, e nga rau rangatira ma, e mihi atu ana ahau i te mutunga o tenei mahi e pa ana ki
a tatou, te iwi Maori o Ngapuhi nui tonu, Ngapuhi kohao rau, Ngapuhi taniwha rau.
Ka mutu i konei taku mahi mo tenei wa.
368
Appendix 1: Te Tiriti o Waitangi and the Treaty of Waitangi
(Source: Claudia Orange, The Treaty of Waitangi,
Allen and Unwin, Wellington, 1987, 257-259.)
Te Tiriti o Waitangi (Maori Text)
Ko Wikitoria te Kuini o Ingarani i tana mahara atawai ki nga Rangatira me nga Hapu o Nu Tirani
i tana hiahia hoki kia tohungia ki a ratou o ratou rangatiratanga me to ratou wenua, a kia mau tonu
hoki te Rongo ki a ratou me te Atanoho hoki kua wakaaro ia he mea tika kia tukua mai tetahi
Rangatira - hei kai wakarite ki nga Tangata maori o Nu Tirani - kia wakaaetia e nga Rangatira
maori te Kawanatanga o te Kuini ki nga wahikatoa o te wenua nei me nga motu - na te mea hoki
he tokomaha ke nga tangata o tona Iwi Kua noho ki tenei wenua, a e haere mai nei.
Na ko te Kuini e hiahia ana kia wakaritea te Kawanaranga kia kaua ai nga kino e puta mai ki te
tangata maori ki te Pakeha e noho ture kore ana.
Na kua pai te Kuini kia tukua a hau a Wiremu Hopihona he Kapitana i te Roiara Nawi hei
Kawana mo nga wahi katoa o Nu Tirani e tukua aianei amua atu ki te Kuini, e mea atu ana ia ki
nga Rangatira o to wakaminenga o nga hapu o Nu Tirani me era Rangatira atu enei ture ka
korerotia nei.
Ko te tuatahi
Ko nga Rangatira o te wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua
wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu - te Kawanatanga katoa o o
ratou wenua.
Ko te tuarua
Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu - ki nga tangata katoa
o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Otiia
ko nga Rangatira o te wakaminenga me nga Rangatira katoa atu ka tuku ki te Kuini te hokonga o
era wahi wenua e pai ai te tangata nona te wenua - ki te ritenga o te utu e wakaritea ai e ratou ko
te kai hoko e meatia nei e te Kuini hei kai hoko mona.
Ko te tuatoru
Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini - Ka tiakina e te
Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite
tahi ki ana mea ki nga tangata o Ingarani.
[signed] W. Hobson Consul & Lieutenant Governor
Na ko matou ko nga Rangatira o te Wakaminenga o nga hapu o Nu Tirani ka huihui nei ki
Waitangi ko matou hoki ko nga Rangatira o Nu Tirani ka kite nei i te ritenga o enei kupu. Ka
tangohia ka wakaaetia katoatia e matou, koia ka tohungia ai o matou ingoa o matou tohu.
369
Ka meatia tenei ki Waitangi i te ono o nga ra o Pepueri i te tau kotahi mano, e waru rau e wa te
kau o to tatou Ariki.
Note: This treaty text was signed at Waitangi, 6 February 1840, and thereafter in the north and at
Auckland. It is reproduced as it was written, except for the heading above the chiefs' names: ko
nga Rangatira o te Wakaminenga.
The Treaty of Waitangi (English text)
Her Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland regarding with
Her Royal Favor the Native Chiefs and Tribes of New Zealand and anxious to protect their just
Rights and Property and secure to them the enjoyment of Peace and Good Order has deemed
necessary in consequence of the great number of Her Majesty's Subjects who have already settled
in New Zealand and the rapid extension of Emigration both from Europe and Australia which is
still in progress to constitute and appoint a functionary properly authorized to treat with the
Aborigines of New Zealand for the recognition of Her Majesty’s sovereign authority over the
whole or any part of those islands – Her Majesty therefore being desirous to establish a settled
form of Civil Government with a view to avert the evil consequences which must result from the
absence of the necessary Laws and Institutions alike to the native population and to Her subjects
has been graciously pleased to empower and to authorize me William Hobson a Captain in Her
Majesty's Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be
or hereafter shall be ceded to Her Majesty to invite the confederated and independent Chiefs of
New Zealand to concur in the following Articles and Conditions.
Article the first
The Chiefs of the Confederation of the United Tribes of New Zcaland and the separate and
independent Chiefs who have not become members of the Confederation cede to Her Majesty the
Queen of England ahsolutely and without reservation all the rights and powers of Sovereignty
which the said Confederation or Individual Chiefs respectively exercise or possess, or may be
supposed to exercise or to possess over the respective Territories as the sole sovereigns thereof.
Article the second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New
Zealand and to the respective families and individuals thereof the full exclusive and undisturbed
possession of their Lands and Estates Forests Fisheries and other properties which they may
collectively or individually possess so long as it is their wish and desire to retain the same in their
possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the
exclusive right of Preemption over such lands as the proprietors thereof may be disposed to
alienate at such prices as may be agreed upon between the respective Proprietors and persons
appointed by Her Majesty to treat with them in that behalf.
Article the third
In consideration thereof Her Majesty the Queen of England extends to the Natives of New
Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.
370
[signed] W. Hobson Lieutenant Governor
Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being
assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of
New Zealand claiming authority over the Tribes and Territories which are specified after our
respective names, having been made fully to understand the Provisions of the foregoing Treaty,
accept and enter into the same in the full spirit and meaning thereof in witness of which we have
attached our signatures or marks at the places and the dates respectively specified.
Done at Waitangi this Sixth day of February in the year of Our Lord one thousand eight hundred
and forty.
Note: This English text was signed at Waikato Heads in March or April 1840 and at Manukau on
26 April by thirty-nine chiefs only. The text became the ‘official’ version.
Author’s Note: Most Maori signed the Maori text of Te Tiriti which retains “tino
rangatiratanga” or “absolute authority” to Maori hapu. The English text, however, cedes
“sovereignty” absolutely, to the Crown of England. The debate about how the two fit together in
a constitutional democracy is ongoing and the relationship between Maori and the Crown is
constantly being reviewed. Although not legally recognised, the Treaty/te Tiriti remains the
hallmark by which many New Zealanders, Maori and Pakeha alike, evaluate the justice of Crown
actions.
371
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Ngawha Geothermal Claim Hearings
Statement of Evidence of Richard Boast, WAI 304, A34.
Statement of Evidence of Wiremu Dalton, WAI 304, A54(g).
Statement of Evidence of Patrick Hohepa, WAI 304, B25(a).
Statement of Evidence of Patrick Hohepa, WAI 304, B25(a).
Statement of Evidence of Kairewa Marsh, WAI 304, A54(d).
Statement of Evidence of Twinnie Padlie, WAI 304, A54(c).
375
Statement of Evidence of Graham Rankin, WAI 304, A54(q).
Statement of Evidence of Andy Sarich, WAI 304, A54(i).
Statement of Evidence of Manga Tau, WAI 304, A54(l).
Statement of Evidence of Paul WiHongi, WAI 304, A54(m).
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before the Environment Court, RMA 408 & 429/00 & 306/01.
Statement of Evidence of Chanel Victoire Clarke for the Friends & Community of
Ngawha Springs before the Environment Court, RMA 408/00, 429/00, 306/01, 4 at para
12.
Statement of Evidence of Wira Gardiner on behalf of the Minister of Corrections, before
the Environment Court, RMA 408/00, 429/00, 306/01
Statement of Patrick Hohepa on behalf of the Northland Regional Council before the
Environment Court, RMA 408/00, 429/00, 306/01.
Statement of Evidence of Garry Hooker for the Friends and Community of Ngawha
Incorporated before the Environment Court, RMA 408, 409/00, 306/01.
Statement of Evidence of Ronald Te Ripi WiHongi before the Environment Court, RMA
408, 429/00, 306/01.
Minutes of Meetings Relevant To Ngawha Prison Hearings
Minutes of Meeting of Trustees, Ngati Rangi Trust, held at Palmer and Macauley
Buildings, Station Road, Kaikohe, 13 February 1999.
Minutes of Meeting between Ngati Rangi Ahu Whenua Trust and Runanga a Iwi o
Ngapuhi Representatives, held at Palmer and Macauley Buildings, Kaikohe, 19 April
1999.
Ngati Rangi Ahu Whenua Trust Report written by Bella Tari, 27 January 2000.
Minutes of Meeting held between Representatives of Ngati Rangi Hapu and Department
of Corrections, Kaikohe, 2 March 2000.
376
Minutes of Meeting held with the Design Team for the Department of Corrections,
Kaikohe, 22 February 2000, 3.
Minutes of Special Ngati Rangi Ahu Whenua Trust Meeting of Owners and
Beneficiaries, held at Ngawha Marae, 13 February 1999.
Minutes of Ngati Rangi Ahu Whenua Trust Meeting held at the offices of Palmer
Macauley, solicitors, Kakohe, 26 October 1999.
Minutes of Ngati Rangi Ahu Whenua Trust Shareholders Meeting held at Ngawha Marae
on Saturday, 12 February 2000.
Minutes of Ngati Rangi Ahu Whenua Trust Meeting held at Palmer Macauley, Station
Road, Kaikohe, 22 February 2000.
Minutes of Ngati Rangi Development Meeting held at Ngawha Marae, Thursday 27 April
2000.
Minutes of Ngati Rangi Ahu Whenua Trust Meeting held at Palmer and Macauley
Buildings, Kaikohe, 1 December 1999.
Interviews Conducted For Sections B And C
Interview with Ross Gregory of Te Rarawa at Auckland, 3 August 1999.
Interview with Hinerangi Rapihana at Kaitaia 17 December 2004, 6 February 2005.
Interview with Cleve Barlow at Kaikohe, 15 June 1997, 4 February 2000, 15 April 2002.
Interview with Herewini Muru at Auckland, 29 September 2003.
Interview with Manuka Henare at Auckland, 19 October 2002.
Interview with Joan Metge at Auckland, 29 April 2005.
Maori Language Manuscripts
HW Mahupuku, “Whakapapa Tupuna”, in Whatahoro, Maori Geneologies, MAORI MSS
MP 1987 4/3/1 2.
N Pene, Nga Pakanga a Ngapuhi, Typescript of Manuscript held by writer and
reproduced with permission of Cleve Barlow and Fred Penney. Restricted access
available at Auckland War Museum Library, Microfilm 1165.
Maps
Location Map of Ngawha Springs and Central Taitokerau Area, Waitangi Tribunal,
Ngawha Geothermal Resource Report, 1993, x
Papatupu And Native Land Court Hearings Material
377
Okahu Native Land Court Hearings, 1898, NMB 25.
Opito Native Land Court Hearings, 1898, NMB 25.
Moturoa Native Land Court Hearings, 1901, NMB 30.
Te Tii, Mangonui, Waimahe Papatupu Block Committee Hearings, 1904, PBMB 51.
Waihou and Whakarapa Papatupu Block Committee Hearings, 1904, PBMB 28-29.
Waireia Native Land Court Hearings, 1913, NMB 51.
Okuratope Block Papatupu Committee Hearings, 1902, PBMB 44.
Reports
New Zealand Law Commission, Maori Custom and Values in New Zealand Law,
Wellington, 2001.
Report of the Waitangi Tribunal on the Ngawha Geothermal Resource Claim 1993 – WAI
304, Brooker and Friend, Wellington, 1993.
Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim – WAI 22,
Wellington, 1988.
Report of the Waitangi Tribunal on the Manukau Claim – WAI 8, Department of Justice,
Wellington, 1985.
Interim Report of Native Land Commission on Native Lands in the Counties of
Whangarei, Hokianga, Bay of Islands, Whangaroa, and Mangonui, AJHR 1908, Volume
IV.
Waitangi Tribunal, Direction, Memoranda on Procedure, Evidence and Issues in the
Inquiry into the Ngati Awa, Tuwharetoa and other claims of the Eastern Bay of Plenty as
at end October 1994. WAI – 46, Papers in Proceedings 2.59, 18.
Theses
J Mcrae, Participation: Native Committees (1883) and Papatupu Block Committees
(1900) in Tai Tokerau, Thesis submitted in partial fulfilment of the requirements for the
degree of Master of Arts in Maori studies, University of Auckland, 1981, 69.
MP Shirres, An Introduction to Karakia, Unpublished PhD thesis, Auckland University,
1986.
M Henare, The Changing Images of Nineteenth Century Maori Society - from Tribes to
Nations, Unpublished PhD thesis, Victoria University, 2003.
378
Unpublished Papers On File With Author
C Barlow, “Light and Knowledge” in Introduction to the Foundations of Maori
Psychology, Department of Psychology, University of Auckland, 1994.
C Barlow, “Te Wheiao ki te Ao-Marama – Worlds in Transition”, unpublished paper for
Department of Archeology, 1984.
ET Durie, Custom Law, unpublished paper for Waitangi Tribunal members and later
referred to the New Zealand Law Commission, January, 1994.
S Jones, “Consultation with Tangata Whenua”, unpublished paper for Resource
Management Law Reform Process, Maruwhenua, Ministry for the Environment, 1992.
P Hohepa, “Te Tiimatanga Mai, nga Kupu, me nga Tikanga Whenua”, seminar on Maori
Land Law, Faculty of Law, Auckland, 23 June 1994.
J Metge, “Succession Law: Background Issues Relating to Tikanga Maori”, unpublished
paper for the New Zealand Law Commission, 1995.
J Williams, He Aha te Tikanga Maori, unpublished paper for the New Zealand Law
Commission, 1998.
379
Glossary
Aroha
affection for others
Atawhai
caring for the welfare of others
Atua
deity, god/s
He
wrong
Hui
gathering/s, meeting/s
Iwi
people, group of people
Iwi mokai
followers, supporters, those under the care of a rangatira
Kawa
symbol, sign, object used in ritualistic practices
Kai
food
Kia atawhai
be kind
Kaikorero
speaker/s
Kaitiaki
caretaker, guardian
Kaitiakitanga
looking after the welfare of people or resources
Kaumatua
male elders
Kuia
female elders
Mana nui
supreme authority
Matua
male parent or member of the parent generation
Maatua
parents
Mataotao
cold
Mokopuna
grandchild or grandchildren, descendants
Mana Rangatira
authority and power possessed by a rangatira
administrative authority on the land
Nga kete tuatoru
the three baskets of knowledge
Noa
free from tapu, free of restriction, available for common use
Ohaki
death bed statement
Pakanga
battle, physical combat between hapu and iwi
Pakanga whakauruuru tangata
Pononga
formal warfare controlled by rangatira
prisoners taken in war
persons whose mana had been diminished through defeat in battle
Rangatira
leader, person of senior lineage
Rangatiratanga
leadership authority, territorial authority
Raupatu
conquest
380
diminution of mana on the land through defeat in battle
Rohe
area
Taha mokai
humble side, side without authority
Take
subject, cause, reason, basis, ground, claim, matter, source of
entitlement
Tangata Tuturu
person with a true claim
Tangata Whenua
people whose whakapapa touches the land
Tapu
of value, restricted
Tatai
lineage
Taua
war party
Teina
younger brother or sister, a person of junior lineage or a member of
the younger generation
Te Ao Wairua
the spiritual realm
Te Ira Wahine
the female ethic
Tika
correct, in accordance with tikanga, entitlement based on tikanga
Tikanga
principles, truth, customary practices , all three combined into a
land tenure system of Maori custom law
Tohunga
experts, persons knowledgable in a particular field
Tuakana
senior, elder
Tuku
to give, gift
Tungane
brother/s of males
Tupapaku
deceased, dead body/ies
Turangawaewae
standing
Ture
“law” that does not have tikanga principles as its basis
Tuturu
true, permanent, real
Uri Rangatira
descendant of a rangatira, of senior lineage
Utu
retribution
Wananga
specialised knowledge, teaching forum for imparting knowledge
Wairua
spirit, spirituality
Whai korero
formal speechmaking
Whare wananga
house of learning
Whenua
afterbirth / land